THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

RIVERSIDE 


GIFT  OF 
Dr.   Gordon  V.atkins 


-33p  <3zav$t  W.  differ 


THE    OLD    LAW  AND    THE    NEW   ORDER 
MORAL   OVERSTRAIN 

HOUGHTON  MIFFLIN  COMPANY 
Boston  and  New  York 


The  Old  Law  and  the  New  Order 


THE  OLD  LAW  AND 
THE  NEW  ORDER 


BY 


v^ 


GEORGE  W.  ALGER 


BOSTON  AND  NEW  YORK 

HOUGHTON  MIFFLIN  COMPANY 

&be  Ifltott&tit  $iz$$  SambriDge 

•9»3 


COPYRIGHT,    1913,   BY   GEORGE   W.  ALGER 
ALL    RIGHTS   RESERVED 

Published  March  IQ13 


To 
My  Mother 


Foreword 

Of  the  papers  which  this  volume  contains, 
four,  "Executive  Aggression,"  "The  Courts 
and  Legislative  Freedom,"  "  Treadmill  Justice," 
and  "  Criticizing  the  Courts,"  were  published  in 
the  Atlantic  Monthly ;  three,  "  Discontent  with 
Criminal  Law,"  "The  Police  Judge  and  the 
Public,"  and  "Punishing  Corporations,"  ap- 
peared in  The  Outlook,  and  "  The  State  as  Em- 
ployer" was  published  in  The  Independent.  To 
the  editors  of  these  publications  I  am  indebted 
for  the  privilege  of  republication,  and  to  the 
Yale  University  Press  for  its  permission  to  in- 
clude in  this  volume  "  The  Ethics  of  Produc- 
tion," an  address  which  I  delivered  in  the  Page 
Series  of  Lectures  at  Yale,  and  which  is  included 
in  their  volume  of  these  addresses  for  the  year 
1909,  Morals  in  Modern  Business.  "The  Law 
and  Industrial  Inequality"  was  a  paper  read  be- 
fore the  State  Bar  Association  of  the  State  of 
New  York.  These  papers,  with  occasional  ex- 
ceptions, have  been  to  a  greater  or  less  extent 
revised  before  republication. 

New  York,  January,  191  3. 


Contents 

I.  Executive  Aggression      .       .       .       .  i 

II.  The  Courts  and  Legislative  Freedom  31 

III.  Treadmill  Justice 59 

IV.  The  State  as  Employer 


V.    American  Discontent  with  Criminal 
Law  .... 


VI.    Criticizing  the  Courts  . 

VII.    The  Police  Judge  and  the  Public 

VIII.    Punishing  Corporations  . 

IX.    The  Law  and  Industrial  Inequality  235 

X.    The  Ethics  of  Production     .       .       .  263 


95 


119 

'47 
181 
213 


I 

Executive  Aggression 


THE  OLD  LAW  AND  THE 
NEW  ORDER 

i 

Executive  Aggression1 

There  is  no  present  fact  in  the  actual  work- 
ings of  American  governmental  machinery 
which  is  more  obvious  than  the  great  increase 
in  power  and  influence  of  executive  authority, 
and  the  corresponding  decline  of  that  of  the 
lawmaker.  This  involves  a  great  change  from 
the  conditions  which  existed  when  our  national 
life  began.  The  Colonial  Governor  was  the 
hated  representative  of  the  Crown.  His  every 
act  was  watched  with  suspicion  and  jealousy  by 
the  legislatures,  which  represented  the  people 
and  stood  between  them  and  royal  tyranny. 
This  attitude  continued  long  after  the  freedom 

1  This  paper  was  written  in  1908.  Occasional  statements  may- 
impress  the  reader  as  not  accurately  descriptive  of  present  con- 
ditions. With  this  word  of  explanation  this  paper  is  printed  with- 
out revision. 


THE  OLD  LAW  AND  THE  NEW  ORDER 

of  our  country  had  been  established,  and  the 
Governor  had  become  the  elect  of  the  people 
rather  than  the  choice  of  the  Crown.  The  au- 
thority of  the  Governor  was  limited  not  only 
by  law,  but  by  public  opinion,  because  the  old 
fear  of  executive  despotism  still  continued  and 
died  hard. 

In  our  national  life  the  historians  tell  us  that 
the  very  existence  of  a  federal  executive,  separ- 
ate and  uncontrolled  by  Congress,  was  due  to 
a  mistake,  to  a  then  current  misconception  of 
the  British  Constitution,  and  to  the  adoption 
by  us  of  what  Mr.  Bagehot  describes  as  the 
"  literary  theory "  of  that  Constitution  rather 
than  its  fact.  Roger  Sherman,  in  the  Constitu- 
tional Convention,  suggested  that  "  the  execu- 
tive magistracy  is  nothing  more  than  an  institu- 
tion for  carrying  the  will  of  the  legislature  into 
effect ;  that  the  person  or  persons  occupying  that 
office  ought  to  be  appointed  by,  and  to  be  ac- 
countable to,  the  legislature  only,  which  was  the 
depositary  of  the  supreme  will  of  the  people. 
As  they  were  the  best  judges  of  the  business 
which  ought  to  be  done  by  the  executive  de- 
partment, he  wished  the  number  might  not  be 
fixed,  but  that  the  legislature  should  be  at  lib— 

4 


EXECUTIVE   AGGRESSION 

erty  to  appoint  one  or  more  as  experience  might 
dictate."  Roughly  speaking,  this  was  and  is  the 
English  system,  under  which  there  is  no  sepa- 
ration of  executive  and  legislative  functions,  but 
the  Government  is  responsible  for  the  enact- 
ment of  new  laws  and  the  enforcement  of  old 
ones. 

Owing  to  a  misapprehension  of  what  the 
English  system  was,  Sherman's  suggestion  was 
not  followed ;  but  the  failure  to  accept  his  propo- 
sition was  not  due  to  any  dissent  in  the  conven- 
tion from  Sherman's  notion  of  what  were  the 
essential  functions  of  the  executive,  and  the 
relatively  greater  importance  of  the  legislative, 
branch  of  government. 

It  is  quite  the  fashion  to-day  to  look  back  to 
the  era  of  such  opinions,  to  consider  the  jeal- 
ously limited  authority  of  the  early  Colonial 
Governors,  and  the  original  concept  of  the  func- 
tions of  the  federal  executive,  as  expressed  by 
Sherman,  and  contrast  them  with  the  current 
practice  and  opinions  as  to  these  offices  to-day. 

There  has  been  a  great  increase  in  the  power 
and  influence  of  executive  officers  since  the  days 
when  the  memory  of  the  Crown  Governors  was 
fresh  in  the  minds  of  people,  when  the  first 

5 


THE  OLD  LAW  AND  THE  NEW  ORDER 

President  was  suspected  of  a  desire  to  be  a 
king.  In  the  past  decade  that  growth  of 
power  has  been  most  marked.  Governors  are 
taking  in  state  matters  positions  of  authority 
which  would  have  been  impossible  a  century 
ago.  The  President  exercises  a  power  to-day 
over  the  affairs  of  the  nation  which  neither  Con- 
gress nor  the  people  would  have  tolerated  in 
George  Washington. 

These  changes,  these  developments,  of  execu- 
tive power,  have  been  made  without  any  sub- 
stantial change  in  our  state  constitutions  and  with 
none  in  that  of  the  nation.  The  letter  of  the  law 
remains.  Nominally,  the  system  is  as  our  fathers 
made  it.  In  practice,  it  is  essentially  a  different 
thing.  This  variance  between  our  principles  and 
our  practice  has  not  developed  unnoticed.  It 
has  been  observed  and  has  been  often  discussed. 
This  growth  of  executive  authority  has  not  taken 
place  without  opposition  from  minds  familiar 
with  the  history  of  our  Constitution. 

Critics  whose  voices  have  at  times  been  raised 
in  protest  against  it  have  described  it  as  executive 
aggression.  The  phrase  itself  implies  hostility.  It 
implies  usurpation  of  ungranted  power.  Presum- 
ably what  those  who  use  the  phrase  mean  is  that, 

6 


EXECUTIVE   AGGRESSION 

notwithstanding  the  clear  language  of  state  and 
national  constitutions  which  describe  and  define 
the  power  of  executive,  legislative,  and  judicial 
officers  ;  despite  the  power  of  the  legislatures  to 
assert  and  maintain  their  own  prerogatives  ;  des- 
pite the  great  and  peculiar  power  of  our  courts  to 
declare  the  constitutional  limitations  of  executive 
authority,  the  Governor  in  the  state  and  the  Pres- 
ident in  the  nation  are  exercising  power  in  excess 
of  that  conferred  by  the  constitutions  made  by 
the  people. 

If  this  charge  related  solely  to  some  one  person, 
if  it  were  merely  that  some  one  particular  Gov- 
ernor had  succumbed  to  the  itch  for  power,  if 
it  were  only  that  the  President  now  in  office 
had  been  guilty,  as  his  opponents  have  often 
charged,  of  dictating  legislation,  of  domineering 
over  Congress  and  of  talking  about  his  policies 
and  purposes  with  a  directness  and  frankness 
which  would  have  made  the  early  Congresses 
gasp  and  stare,  it  would  be  less  important.  But 
it  is  a  common  and  general  charge,  and  has  been 
made  in  recent  years  against  almost  every  Gov- 
ernor who  has  accomplished  anything  and  who 
has  left  his  office  with  a  record  of  public  service. 

Within  certain  narrow  limits,  this  matter  of 
7 


THE  OLD  LAW  AND  THE  NEW  ORDER 

executive  aggression  is  a  legal  question.  Again 
and  again,  in  solemn  conclave,  the  bar  has 
discussed  it,  and  asserted  and  reasserted  the 
constitutional  requirements  that  executive,  leg- 
islative, and  judicial  functions  must  be  kept 
separate.  Learned  lawyers,  familiar  with  the  let- 
ter of  the  law  and  with  the  ancient  theory  of  the 
division  of  governmental  power,  have  sounded 
a  dignified  note  of  warning  against  executive 
poachings  of  power.  Many  addresses  on  specific 
instances  of  such  alleged  usurpations  have  been 
made  by  distinguished  jurists,  but  for  some 
reason  these  protests  seem  to  have  had  little 
effect  either  on  executive  conduct  or  upon  the 
public  mind. 

The  cases  of  executive  aggression,  however, 
involvingan  actual  overstepping  of  constitutional 
boundaries,  have  been  few,  and  when  they  have 
occurred  their  seriousness  has  often  been  exag- 
gerated. What  we  have  to  consider  is  not  so 
much  a  matter  of  law  as  one  of  public  opinion. 
It  is  the  change  in  the  attitude  of  the  people 
toward  the  executive  office,  and  the  enormous 
increase  in  the  power  of  the  executive  which 
has  resulted  from  it. 

The  criticisms  from  the  jurists  have  consid- 


EXECUTIVE   AGGRESSION 

ered  rather  the  letter  of  the  law  than  the  spirit 
of  the  people,  and  have  generally  taken  the 
form  of  a  more  or  less  acrimonious  arraignment 
of  some  particular  executive  for  some  particular 
act  of  alleged  transgression,  as  though  in  him  and 
his  Teachings  for  power  lay  the  whole  source  and 
origin  of  the  supposed  offense.  Some  of  these 
critics  are  distinguished  statesmen  and  well- 
known  lawyers,  and  it  is  with  considerable  hesita- 
tion that  I  venture  to  suggest  that  such  criticisms 
fail  to  take  into  consideration  the  real  cause  of 
the  conditions  against  which  they  protest,  a 
cause  which  seems  apparent  on  taking  a  broader 
field  of  observation. 

The  pith  of  this  executive  aggression  business 
is  in  the  fact  that  the  people  have  come  to 
expect  something  to-day  of  the  executive  which 
a  quarter  of  a  century  ago  they  did  not  expect 
or  require.  Consider  our  actual  practice.  When 
we  elect  a  President,  we  elect  a  man  whom  the 
majority  believes  to  be  wise  enough  and  strong 
enough  to  rule  the  nation.  We  expect  him  to 
carry  into  effect  policies  which  he  deems  advanta- 
geous to  the  common  weal  by  causing  Congress 
to  pass  his  measures,  using  upon  Congress  such 
compulsion   as   may    be   necessary    to    have  it 

9 


THE  OLD  LAW  AND  THE  NEW  ORDER 

accept  his  purposes.  We  expect  the  President 
and  his  officers  to  initiate  constructive  legisla- 
tion, and  to  attend  to  getting  it  made  into  law. 
We  even  expect  him  to  decide  what  particular 
laws  are  to  be  enforced  by  his  law  officers. 

Because  we  expect  that  when  he  is  elected  he 
will  do  all  these  things,  we  are  before  election 
interested  in  knowing  his  ideas,  what  policies  he 
has,  and  what  laws  he  proposes  to  enforce.  If, 
after  election,  he  fails  to  accomplish  the  things 
he  has  told  us  about  before  election,  if  Congress 
rejects  his  measures,  if  he  does  not  put  his  poli- 
cies into  law,  if  he  enforces  unpopular  law,  he 
need  not  try  to  shift  the  blame  to  others.  It  is 
he,  not  Congress,  who  has  failed  us.  If  he  fails 
to  get  congressional  support,  he  has  simply 
shown  himself  inefficient.  We  may  elect  senators 
and  representatives,  but  it  is  the  tendency  to 
hold  the  President  responsible  for  what  they  do. 
We  expect  him  to  exercise  dominion,  not  only 
over  Congress,  but  over  the  law  itself.  We  ex- 
pect him  to  use  executive  wisdom  in  selecting 
what  laws  shall  be  enforced,  and  in  deciding  not 
to  enforce  bad  laws.  We  make  much  the  same 
kind  of  demand  upon  our  Governors  in  the 
states. 

10 


EXECUTIVE   AGGRESSION 

Does  this  statement  of  our  expectations  seem 
exaggerated  ?  Does  it  represent  only  the  demands 
of  the  foolish,  or  of  those  unfamiliar  with  our 
institutions  and  ignorant  of  the  exact  legal  lim- 
itations of  executive  authority?  Is  it  too  much 
to  say,  for  example,  that  we  expect  the  President 
or  the  Governor  to  decide  what  laws  shall  be 
enforced  and  what  let  alone,  although  his  oath  of 
office  gives  him  no  such  discretion  ?  Take  a  prac- 
tical illustration  of  the  spirit  which  demands  this 
form  of  executive  aggression,  an  expression  com- 
ing not  from  an  ignorant  source,  but  from  one 
of  the  most  conservative  and  law-wise  of  New 
York  papers,  one  famous  for  printing  all  the 
news  that  is  fit  to  print. 

In  an  editorial  calling  President  Roosevelt  to 
task  for  what  it  described  as  his  "ill-judged 
zeal"  in  enforcing  the  Sherman  Anti-Trust  Act, 
it  said  recently,  "  He  is  the  only  public  man  who 
has  declared  that  he  would  enforce  the  law,  al- 
though he  was  aware  of  its  defects.  How  much 
better  would  have  been  his  position,  and  the 
country's  position,  if  he  had  asked  indulgence 
in  the  non-enforcement  of  the  law  until  it 
was  fit  to  be  enforced."  What  the  paper 
wanted  the  President  to  do  was  to  commit  what 

ii 


THE  OLD  LAW  AND  THE  NEW  ORDER 

it  describes  as  "a  technical  neglect  of  his  official 
oath,"  by  refusing  to  enforce  a  law  which  the 
newspaper,  the  President  himself,  and  a  great 
many  other  people  think  is  hopelessly  crude  and 
illogical,  but  which  thousands  of  fervent  souls 
consider  an  enactment  paralleled  only  by  the 
Ten  Commandments.  Any  newspaper  reader 
would  have  little  difficulty  in  finding  editorials 
similar  in  spirit  to  the  one  just  quoted. 

The  theory  of  responsibility,  which  puts  upon 
the  executive  the  duty  to  exercise  executive 
common  sense  in  selecting  the  laws  which  "de- 
serve to  be  enforced,"  is  not  recognized  even  in 
quarters  from  which  strenuous  opposition  would 
seem  most  to  be  expected;  that  is,  the  legislature 
itself.  A  rather  bleak,  elderly  little  lawyer  with 
heavy  glasses  was  addressing  one  of  the  com- 
mittees of  the  New  York  Legislature  some  six 
months  ago.  He  was  complaining  bitterly  about 
the  hardships  of  a  factory  law,  whose  provisions 
he  assured  the  much-bored  committee  pressed 
heavily  upon  a  certain  large  Buffalo  plant  which 
he  represented.  In  the  midst  of  his  argument 
one  of  the  senators  interrupted  him.  "Let  me 
ask  you  a  question.  Has  the  Commissioner  of 
Labor  been  unreasonable  in  the  way  he  has  en- 

12 


EXECUTIVE   AGGRESSION 

forced  it  on  you  ?  "  The  lawyer  wiped  his  glasses 
and  smiled  deprecatingly.  "Why,  he  hasn't 
prosecuted  us,  sir."  "Has  he  prosecuted  any- 
body, so  far  as  you  know?"  persisted  his  ques- 
tioner. Why,  no,  not  so  far  as  I  know,  but  the 
law  is  there,  and  —  "  "  Do  you  mean  to  tell  me," 
interrupted  the  senator,  in  a  voice  swelling  with 
indignation,"  that  you  have  been  wasting  half  an 
hour  of  this  committee's  time  on  a  statute  which 
has  occasioned  you  absolutely  no  grievance  — 
which,  so  far  as  you  know,  has  n't  been  unrea- 
sonably or  unjustly  enforced  against  anybody  ? " 

This  question  to  all  practical  purposes  closed 
the  debate.  The  little  man  with  the  glasses 
endeavored  to  stem  the  tide  running  strongly 
against  him  by  futile  remarks  about  the  law  being 
on  the  statute-books,  that  it  might  be  enforced, 
and  so  forth,  until  the  chairman  mercifully  fin- 
ished him  by  intimating  that  they  had  a  long 
calendar  and  must  now  take  up  Senate  Bill  No. 
163. 

Into  my  sympathetic  ears  the  little  man  later 
poured  his  opinion  of  the  committee.  A  few  of 
his  phrases  were  quite  choice,  and  I  retailed 
some  of  them  later  to  the  Socratic  senator  who 
had  been  the  subject  of  them.  He  listened  good- 

13 


THE  OLD  LAW  AND  THE  NEW  ORDER 

humoredly.  "Theoretically  he  was  right,"  he 
admitted,  "but  where  should  we  be  if  we  spent 
our  time  repealing  all  the  dead-letter  statutes?  " 
The  senator  who  saw  no  special  reason  for 
repealing  a  bad  law,  provided  it  was  not  enforced, 
doubtlessly  considered  himself  a  practical  man. 
He  expected  the  Governor's  representative,  the 
Commissioner  of  Labor,  to  use  common  sense 
in  enforcing  the  laws  which  were  his  to  enforce. 
If  the  law  proved  to  be  an  unreasonable  one 
and  not  "practical,"  he  expected  the  executive 
through  this  commissioner  to  use  discretion  and 
common  sense  again  by  letting  it  alone.  If  this 
common  sense  was  being  used,  —  if  no  one  was 
being  prosecuted,  —  then  there  was  no  urgent 
need  that  the  law  should  be  repealed.  Hence, 
while  in  theory  it  ought  to  be  repealed,  practi- 
cally there  was  no  need  that  a  busy  legislature, 
struggling  with  a  long  calendar  of  proposed  new 
laws,  should  be  troubled  with  it.  The  senator 
was  expressing  the  new  political  theory,  which 
slowly  but  certainly  is  growing  up  in  this  country, 
and  which  is  in  direct  conflict  with  the  old  con- 
stitutional theory  of  divided  and  coordinate 
powers.  It  may  be  described  as  the  theory  of 
executive  common  sense,  a  theory  the  applica- 

14 


EXECUTIVE   AGGRESSION 

tion  of  which  doubles  the  responsibility  of  the 
executive  by  diminishing  that  of  the  legislature 
almost  to  the  vanishing  point. 

When  the  legislature  itself  recognizes  this 
theory,  and  in  instances  like  this  affirms  the  right 
and  duty  of  the  executive  to  select  the  laws  which 
ought  to  be  enforced;  when  the  people  demand 
from  the  executive  that  he  use  a  strong  hand  upon 
the  makers  of  laws  to  compel  them  to  enact  such 
new  laws  as  he  desires;  when  the  public  in  al- 
most every  controversy  between  the  State  Gov- 
ernor and  the  Legislature,  or  between  the  Pre- 
sident and  Congress,  is  to  be  found  lined  up  in 
support  of  the  executive  and  clamorous  for  the 
submission  of  the  legislative  branch  to  the  will 
of  the  executive,  what  does  it  all  mean?  What 
has  brought  this  change  about? 

To  a  very  marked  extent  this  change  is  due 
to  our  American  methods  of  legislation.  We  are 
a  practical  people,  and  have  confronting  us  a  dis- 
tinctly practical  problem  which  presents  itself 
to  us  in  about  this  fashion.  Our  legislatures, 
most  of  which  have  bi-annual  sessions,  pass  every 
two  years  some  twenty-five  thousand  separate 
laws.  In  1 906—07,  for  example,  there  were  passed 
by  Congress  and  state  legislatures  25,446  acts 

15 


THE  OLD  LAW  AND  THE  NEW  ORDER 

and  1576  resolutions.  At  a  conservative  esti- 
mate, twenty  thousand  of  these  were  local  laws, 
affecting  separate  cities  and  towns  and  having  no 
general  scope  whatever,  or  were  special  bills  re- 
lating to  private  interests  only.  In  England  in 
the  entire  nineteenth  century  there  were  enacted 
some  twenty-one  thousand  special  and  local  bills. 
In  America  our  legislatures  pass  as  many  of  these 
laws  every  two  years.  In  1906  and  1907,  while 
our  American  legislatures  were  turning  out  these 
twenty-five  thousand  laws  and  fifteen  hundred 
resolutions,  the  attention  of  the  British  Parlia- 
ment was  concentrated  upon  one  hundred  and 
fourteen  public  acts  and  general  laws. 

Sixty  years  ago  England  laid  the  foundations 
of  a  scientific  plan  for  handling  local  and  private 
bills.  There  had  been  political  corruption  in  the 
granting  of  franchises  in  England,  as  well  as  in 
our  own  country,  in  the  early  days  of  railroad 
development.  The  unscrupulous,  who  sought 
unjust  advantages  and  special  privileges  through 
legislation,  applied  to  Parliament  then,  much  as 
they  apply  to  our  state  legislatures  now.  The 
Standing  Orders  adopted  in  1847  m  England 
afford  a  method  of  dealing  with  local  and  private 
measures,  by  which  an  investigation  closely  akin 

16 


EXECUTIVE   AGGRESSION 

to  a  judicial  trial  by  a  parliamentary  tribunal  is 
made  of  each  of  these  bills,  on  fullest  advance 
notice  to  every  public  and  private  interest  which 
its  enactment  might  affect.  Under  this  plan,  cor- 
ruption has  lost  the  secrecy  which  gives  it  its 
main  opportunity,  and  the  undivided  time  of 
Parliament  itself  is  devoted  to  more  important 
public  matters.  In  1 907,  substantially  the  entire 
lawmaking  work  of  Parliament  itself  is  embodied 
in  fifty-six  general  public  acts,  contained  in  two 
hundred  and  ninety-three  printed  pages.  In  the 
same  year,  the  State  of  New  York  enacted  seven 
hundred  and  fifty-four  laws,  occupying  twenty- 
five  hundred  pages. 

The  legislative  methods  of  that  state  are  char- 
acteristic American  methods.  Every  municipal- 
ity in  New  York,  for  example,  goes  to  the  legis- 
lature for  every  amendment  to  its  local  charter. 
When  Buffalo  wants  a  Polish  interpreter  for  a 
police  court,  when  Yonkers  wants  to  raise  the 
salary  of  its  city  judge,  when  Cohoes  wants  to 
build  a  bridge,  or  Dunkirk  to  build  sewers,  when 
Fulton  wants  some  new  fire-hose  for  its  fire  de- 
partment, or  Little  Falls  wants  to  raise  the  pay 
of  its  police,  when  Albany  wants  to  fix  the  sal- 
ary of  a  deputy  superintendent  of  an  almshouse, 

17 


THE  OLD  LAW  AND  THE  NEW  ORDER 

they  go  to  the  legislature  of  the  state  and  ask 
for  a  law.1 

1  At  a  meeting  in  September,  1912,  of  the  newlv  organized 
Municipal  Government  Association  in  New  York,  whose  purpose 
is  to  free  the  cities  of  the  State  from  the  senseless  bondage  to  the 
legislature  which  results  in  this  type  of  "local"  bill,  a  high  au- 
thority upon  Municipal  Government,  Mr.  J.  Hampton  Dough- 
erty, delivered  an  address  in  which  he  analyzed  the  amendments, 
adopted  during  a  series  of  years,  to  the  charter  of  New  York  City. 
He  said  :  — 

"The  present  Greater  New  York  was  organized  in  1897  under 
a  charter  granting  a  slight  measure  of  municipal  independence. 
That  charter  was  revised  in  1901  along  similar  lines.  But  be- 
tween 1897  and  the  revision  of  1901  the  legislature  passed  58 
separate  acts  amending  the  charter  of  1897  ;  between  the  revi- 
sion of  1 901  and  the  fall  of  1907  the  legislature  amended  267 
sections  of  the  charter  of  1901,  and  added  46  new  sections.  Be- 
tween 1897  and  1907  it  passed  650  separate  and  special  acts,  each 
directly  affecting  the  property,  government,  or  rights  of  the  city. 

"Nor  has  the  legislature  been  less  active  since  1907  in  chang- 
ing the  New  York  City  Charter.  In  1908  it  passed  71  amend- 
ments ;  in  1909,  25  amendments  ;  in  1910,  28jini9ii,  34; 
and  in  1912,  49.  It  also,  in  each  of  those  years,  passed  a  num- 
ber of  special  statutes  directly  affecting  the  city's  government. 
In  1908  there  were  25  such  enactments;  in  1909,  29;  in  1910, 
59  ;  in  1 91 1  the  year  of  the  famous  Levy  Election  Law,  32  ;  in 
1912,  23. 

"  The  habit  of  appealing  to  Albany  for  legislation,  either 
amending  the  city  charter  or  in  the  form  of  special  acts  affecting 
the  city's  purse  or  government,  has  been  a  growing  evil  from 
1857  onward.  Prior  to  1857  it  was  a  cardinal  principal  that  the 
city  was  master  of  its  own  government,  with  the  right  to  orig- 
inate its  form  of  charter,  and  to  have  that  charter  submitted  to 
vote  of  the  people  of  the  city.  As  Mr.  James  Bryce  has  forcibly 
observed  :  <  Since  this  date  the  largest  city  of  the  American  con- 

18 


EXECUTIVE   AGGRESSION 

What  does  an  assemblyman  or  senator  from 
New  York  City  know  about  the  necessity  for  a 
Polish  interpreter  in  a  Buffalo  police  court,  or 
for  hose  in  the  fire  department  of  Fulton  ?  Why 
should  he  knowanythingabout  such  remote  mat- 
ters ?  The  prevailing  American  method  of  leg- 
islation, however,  expects  him  to  vote  upon  such 
things.  In  American  legislatures,  not  only  bills 
of  this  kind,  but  bills  creating  franchises  for  cor- 
porations, granting  special  privileges,  establish- 
ing private  interests,  are  introduced  by  the  hun- 
dred and  passed  by  the  score,  without  advance 
publicity  of  any  kind  or  a  semblance  of  careful 
investigation.  Is  it  extraordinary  that,  with  their 
legislatures  constantly  occupying  themselves  with 
matters  which  are  no  part  of  the  real  business  of 
the  public,  the  public  look  elsewhere  when  seek- 
ing to  have  that  business  performed  ?  That  they 
look  to  the  Governor  and  his  advisers,  rather 
than  to  the  legislature  itself;  and  look  to  him, 

tinent  has  lain  at  the  mercy  of  the  state  legislature,  and  the  leg- 
islature has  not  scrupled  to  remodel  and  disarrange  the  govern- 
mental institutions  of  the  city.  Its  charter  has  been  subjected  to 
a  continual  "tinkering"  that  has  made  the  law  uncertain  and  a 
comprehension  of  its  administration  extremely  difficult.1 

"This  is  true  not  only  as  to  New  York  City,  but  to  a  degree 
as  to  every  city  of  the  state.  This  evil  habit  of  constantly  alter- 
ing or  revising  city  charters  pervades  the  entire  state." 

19 


THE  OLD  LAW  AND  THE  NEW  ORDER 

not  only  to  initiate  needed  general  laws,  but  by 
his  personal  authority  and  his  veto  to  dam  the 
swelling  flood  of  special  and  local  bills  as  well? 

The  constant  complaint  of  the  reformer  is  that 
the  people  pay  too  little  attention  to  the  doings 
of  the  representatives  who  make  the  laws.  Is  it 
possible  for  the  people  of  a  state  to  follow,  with 
interest  or  with  profit,  the  work  of  a  legislature 
occupied  for  the  most  part  with  bills  of  this 
kind  ?  Is  it  to  be  wondered  at  that  the  public 
recognizes  its  inability  to  focus  its  mind  on  these 
things,  and  turns  the  whole  matter  of  legislation 
over  to  the  supervision  of  the  Governor  ?  It  has 
been  said,  not  without  a  show  of  reason,  that, 
unless  there  be  a  return  to  the  old  principle  of 
local  self-government,  the  only  practical  alter- 
native for  the  people  is  a  benevolent  despotism 
by  the  Governor  —  an  elective  despot. 

Among  the  forgotten  books  of  political  phil- 
osophy, there  is  one  which,  perhaps  more  than 
any  other,  should  be  remembered  in  America 
—  because  it  is  the  philosophy  which  stood  at 
the  beginning  of  the  American  Revolution  ;  a 
philosophy,  the  attempt  to  apply  which  was  one 
of  the  great  causes  of  that  Revolution.  This 
book  was  Bolingbroke's  "  The   Idea  of  a  Pa- 

20 


EXECUTIVE   AGGRESSION 

triot  King."  In  that  work,  written  at  a  time  when 
parliamentary  government  was  at  its  lowest  ebb, 
and  English  politics  a  sink  of  corruption,  when 
rotten  boroughs  flourished  and  the  votes  of  un- 
representative representatives  had  to  be  bought 
on  every  important  measure,  Bolingbroke  ad- 
vocated the  control  of  Parliament,  and  of  the 
legislative  affairs  both  of  England  and  her  col- 
onies, by  the  strong  hand  of  a  patriot  king.  Bol- 
ingbroke believed  that  the  vigorous  use  of  the 
royal  prerogative  by  a  patriot  king  ruling  with 
wisdom,  and  controlling  by  a  strong  hand  Par- 
liament and  the  affairs  of  the  nation,  would  af- 
ford a  practical  solution  for  the  evils  created  by 
a  corrupt,  inefficient,  unrepresentative,  and  fac- 
tional Parliament.  America  did  not  accept  this 
doctrine  then.  The  idea  of  a  patriot  king  col- 
lapsed under  George  III.  His  attempt  to  put 
this  philosophy  into  effect  was  among  the  causes 
of  the  Revolution  which  separated  us  from  Great 
Britain. 

One  of  the  great  contributions  of  America  to 
British  freedom  came  through  our  refusal  to  ac- 
cept this  new  political  doctrine.  The  patriot- 
king  theory  disappeared  in  England  after  the 
Revolution.  A  cure  for  the  conditions  which 

21 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  patriot  king  and  his  prerogative  proposed 
to  cure  was  found  in  a  reformed  Parliament  and 
a  better  system  of  representation.  Those  who 
seek  a  practical  solution  for  our  present  legisla- 
tive difficulties,  in  an  extraordinary  increase  of 
the  influence  of  the  executive  over  the  affairs 
of  the  state  and  the  nation,  are  offering  us  the 
patriot-king  theory  in  a  new  form.  If  we  do  not 
really  want  it,  we  must  recognize  the  reasons 
which  give  that  theory  an  apparent  justification 
in  America  to-day,  and  destroy  the  doctrine  by 
destroying  the  causes  which  have  brought  it  into 
existence. 

Unconsciously,  by  instinct  rather  than  by 
direct  reasoning,  the  people  are  realizing  that 
our  lawmaking  machinery  has  broken  down  ; 
that,  in  their  methods  of  legislation,  our  legis- 
latures are  to-day  struggling  with  the  impos- 
sible. The  American  voter  realizes,  moreover, 
the  absolute  impossibility  that  any  average  citi- 
zen, who  has  any  business  of  his  own  to  attend 
to,  can  know  anvthing  about  these  special  and 
local  bills,  which,  under  prevalent  crude  and 
clumsy  methods,  clog  the  calendars  of  the  legis- 
latures. We  realize  that  in  our  respective  states 
the  greater  part  of  the  time  of  our  legislators  is 

22 


EXECUTIVE   AGGRESSION 

engrossed  in  mulling  over  these  bills  and  pass- 
ing them  by  the  score,  when  on  the  final  vote 
not  one  legislator  in  ten  has  any  real  under- 
standing of  either  the  propriety  or  the  necessity 
of  their  enactment.  We  realize  that  the  time 
misspent  upon  these  measures  is  necessarily 
taken  away  from  the  consideration  of  general 
public  acts  dealing  with  the  common  interests 
of  all  of  us  ;  and  that,  because  of  this  enormous 
volume  of  special  legislation,  the  statute-books 
tend  to  get  filled  with  bad  laws,  bad  because  ill- 
considered  and  hastily  passed,  —  because  in  this 
confused  muddle  of  hasty  lawmaking,  the  law- 
makers themselves  lose  the  sense  of  responsi- 
bility. It  is  physically  impossible  for  us  to 
watch  all  these  bills,  or  to  watch  the  men  who 
make  a  business  of  passing  them.  What  are  we 
to  do  ? 

The  answer  which  we  make  perhaps  uncon- 
sciously is  this  :  Let  us  put  it  all  up  to  the 
Governor  or  President.  Let  us  elect  a  good 
Governor.  Let  us  elect  a  President  we  can  trust, 
and  turn  over  to  him  the  whole  business  of 
managing  this  machinery  of  lawmaking  in  our 
behalf. 

In  this  way  and  for  this  reason,  consciously 
23 


THE  OLD  LAW  AND  THE  NEW  ORDER 

or  unconsciously,  we  are  remoulding  our  insti- 
tutions. In  spite  of  our  American  Constitution, 
in  spite  of  our  traditions  of  divided  powers,  we 
are  to  a  large  extent  trying,  in  practice,  the  es- 
tablished English  principle  by  which,  as  that 
best  of  foreign-born  Americans,  Mr.  Bryce, 
puts  it,  "  The  Executive  is  primarily  responsible 
for  legislation  and,  to  use  a  colloquial  expres- 
sion, 'runs  the  whole  show,' — the  selection  of 
topics,  the  preparation  of  bills,  their  piloting 
and  their  passage  through  Parliament."  The 
English  system  recognizes  no  theoretical  sep- 
aration between  executive  and  legislative  func- 
tions. The  Government  is  at  once  the  source 
of  the  country's  general  legislative  plans,  its 
lawmaker,  and  its  enforcer  of  law.  We,  in  turn, 
are  in  practice  tending  toward  a  similar  scheme 
of  actual  government.  In  practice,  we  have  re- 
versed the  theoretical  course  of  legislation.  We 
expect  the  President  and  the  Governor  to  ini- 
tiate legislation  to  meet  general  public  require- 
ments, and  that  those  general  public  acts  shall 
come,  not  from  the  legislature,  but  from  the 
executive  and  his  advisers.  We  expect  in  the 
enforcement  of  law,  moreover,  that  the  execu- 
tive will  ignore  laws  which  are  not  fit  to  be  en- 

24 


EXECUTIVE   AGGRESSION 

forced.  We  have  adopted  this  plan  because  we 
realize  that  the  thing  which  stands  between  us 
and  legislative  chaos  is  executive  aggression. 
That  which  to-day  protects  us  from  legislatures 
as  good  as  we  deserve  is  an  executive  better 
than  we  deserve.  We  have  asked  for  that  ex- 
ecutive aggression,  and  we  cannot  consistently 
complain  when  we  get  it.  Until  the  method 
and  scope  of  our  legislation  changes,  we  shall 
need  it. 

The  condition  which  makes  executive  aggres- 
sion has  other  phases  not  less  important.  Cer- 
tain conservative  minds  are  complaining,  for 
example,  of  what  is  called  "  federal  aggression." 
With  our  state  legislatures  struggling  with  bills 
regulating  the  local  affairs  of  cities  and  towns, 
there  has  been  and  can  be  no  general  progress 
toward  uniformity  of  laws  among  the  states, 
a  uniformity  absolutely  necessary  for  the  suc- 
cess of  interstate  business,  which  yearly  increases 
enormously  in  volume.  Because  there  is  no 
progress  toward  uniformity  of  state  law,  the 
people  are  asking  that  the  Federal  Consti- 
tution be  stretched  so  that  we  may  get  that 
uniformity  through  national  law.  What  hostile 
critics  describe  to-day  as  federal  aggression  is 

25 


THE  OLD  LAW  AND  THE  NEW  ORDER 

in  a  large  measure  the  attempt  by  federal  law 
to  meet  that  demand  for  uniformity  of  law 
which  the  state  legislatures  have  neglected  and 
ignored. 

The  continuance  of  inefficient  methods  of 
lawmaking  is,  moreover,  one  of  the  most  con- 
spicuous sources  of  a  certain  lawlessness  which, 
we  can  but  admit,  characterizes  us  as  a  people. 
In  the  country  where  laws  are  made  on  the 
wholesale  plan  by  bad  methods,  in  enormous 
quantities,  in  great  haste,  the  respect  of  the 
people  for  law  is  bound  to  diminish  and  at  times 
to  disappear. 

The  same  cause  which  tends  to  promote  ex- 
ecutive aggression  tends,  moreover,  to  make 
that  aggression  increase,  rather  than  decrease,  in 
scope  and  function,  by  making  the  individual 
legislator  a  cipher,  by  taking  from  his  work 
dignity  and  importance,  and  thereby  causing 
the  office  itself  to  be  filled  by  third-rate  men. 

As  I  was  conversing  sometime  ago  with  two 
intelligent,  well-educated  voters,  residents  of  a 
county  adjoining  the  city  of  New  York,  one  of 
them  expressed  regret  at  the  failure  of  his  party 
to  reelect  a  local  assemblyman.  To  my  sugges- 
tion that  the  man  had  proved  himself  stupid  in 

26 


EXECUTIVE   AGGRESSION 

office,  and  that  his  failure  to  be  reelected  was 
no  great  loss  to  the  assembly,  they  replied, 
"  He  knew  enough  to  vote  c  Yes '  for  what  the 
Governor  wanted,  and  that  was  all  he  had  to 
know."  That  was  what  the  office  of  assembly- 
man for  their  district  meant  to  them. 

This  point  of  view  has  many  adherents.  The 
legislature  tends  to  become  a  body  whose  func- 
tion, so  far  as  the  public  generally  is  concerned, 
is  to  pass  local  bills,  and  on  public  measures 
to  register  the  policies  and  legislative  plans  of 
the  executive-  To  find  intelligent  and  independ- 
ent men  who  will  care  to  accept  legislative 
office  under  such  conditions  is  growing  harder 
each  year,  a  fact  which  adds  still  more  to  the 
importance  of  the  executive  as  the  real  source 
from  which  constructive  legislation  is  to  em- 
anate. 

The  English  Constitution,  as  some  one  has 
said,  consists  not  of  documents,  but  of  certain 
ideas  on  political  principles  shared  by  the  vast 
majority  of  thinking  Britons.  On  our  own  side 
of  the  water,  we  have  written  constitutions  per- 
fectly clear  in  their  general  scheme,  which  declare 
the  separation  of  powers,  executive,  legislative, 
and  judicial.    But  instead  of  this  distribution 

27 


THE  OLD  LAW  AND  THE  NEW  ORDER 

being  one  of  our  fixed  political  ideas,  there 
are  now  cross-currents  of  conflicting  opinions. 
Those  who  believe  in  practicing  the  theory 
of  the  Constitution,  at  any  cost  to  the  country, 
are  at  war  with  those  who  believe  in  getting  the 
right  thing  done,  at  any  cost  to  the  theory  and 
regardless  of  possible  future  consequences.  The 
chief  executives  in  the  state  and  nation  stand  at 
a  point  where  these  cross-currents  meet.  No 
more  embarrassing  position  can  be  imagined 
than  that  of  the  President  or  Governor  who 
tries  to  keep  a  clear  course  between  those  who 
think  that  he  should  be  nothing  but  a  business 
manager,  and  those  who  insist  that  he  should 
be  the  general  executive  officer  and  a  working 
majority  of  the  board  of  directors  as  well. 

A  still  further  embarrassment  comes  to  him 
from  the  empirical  standards  of  the  press.  For 
the  newspapers,  plainly  reflecting  public  opinion, 
ally  themselves  at  times  with  one  school  and  at 
times  with  the  other,  and  make  the  whole  mat- 
ter of  executive  conduct  one,  not  of  law,  but  of 
good  taste.  The  newspaper  which  to-day  scolds 
the  President  for  refusing  to  usurp  the  function 
of  Congress  by  practically  repealing  the  Sher- 
man Law  "  until  it  is  fit  to  be  enforced,"  pre- 

28 


EXECUTIVE   AGGRESSION 

sumably  would  see  nothing  illogical  to-morrow 
in  calling  him  an  arrogant  despot  in  case  he 
should  declare  the  Pure  Food  Act,  for  example, 
unfit  to  be  enforced,  and  should  notify  Congress 
that  the  law  would  remain  a  dead  letter  until  a 
better  one  was  enacted.  Judged  either  by  law 
or  by  logic,  the  executive  aggression  involved 
would  be  no  greater  in  one  case  than  in  the  other. 
The  mere  fact  that  one  course  of  conduct  would 
please  the  newspaper  and  the  other  would  not, 
is  but  a  suggestion  of  a  government  by  news- 
paper,—  a  different  form  of  aggression,  which, 
however,  does  not  lack  advocates. 

Those  who  talk  about  executive  aggression 
as  though  its  origin  were  the  mere  itch  for  power 
of  individuals,  placed  in  temporary  positions  of 
authority,  would  do  well  to  study  the  real  source 
of  the  tendency  by  which  they  are  sometimes 
justly  alarmed.  Public  opinion,  tired  of  legisla- 
tive inefficiency  and  irresponsibility,  has  devel- 
oped a  fancy  for  despotism  in  its  demand  upon 
the  executive  to  get  things  done.  Until  we  re- 
form our  methods  of  legislation,  this  seems 
likely  to  continue.  So  long  as  our  present  meth- 
ods remain  in  vogue,  executive  interference  in 
legislative   matters  bids   fair  to  continue,  not 

29 


THE  OLD  LAW  AND  THE  NEW  ORDER 

in  defiance  of  public  opinion,  but  with  its  very 
general  assent,  approval,  and  support. 

There  are  those  who  desire  a  return  to  the 
theory  of  the  Constitution,  but  who  do  not  see 
that  any  appreciable  progress  can  be  made  by 
mere  general  abuse  of  executive  officers  for  so- 
called  aggression,  while  ignoring  the  present 
reason  and  practical  justification  of  that  aggres- 
sion. The  return  to  the  theory  can  be  accom- 
plished when  common  sense  has  been  restored  to 
the  purposes  and  methods  of  legislation.  When 
that  has  been  done,  executive  usurpation  will 
disappear.  The  public  opinion  which  now  sup- 
ports and  encourages  it  will  then  refuse  even  to 
tolerate  it.  The  return  to  the  Constitution,  the 
old  American  theory  of  divided  powers  and 
duties,  is  desirable,  but  it  can  be  accomplished  in 
no  other  way  ;  for  we  are  a  practical  people,  and 
if  we  are  to  have  theories,  we  insist  that  they 
shall  be  theories  which  work. 


II 

The  Courts  and  Legislative  Freedom 


II 

The  Courts  and  Legislative  Freedom 

Twenty-five  to  fifty  years  ago  there  were 
time-honored  phrases  which  were  applied  by 
lawyers  with  more  or  less  popular  approval  to 
the  American  judiciary.  The  courts  were  the 
"  Palladium  of  our  liberties,"  the  "  Guardians 
of  the  Ark  of  the  Covenant."  To-day  the  pub- 
lic attitude  has  largely  changed.  These  phrases 
are  no  longer  current.  The  people  are  dissatis- 
fied with  the  guardians,  and  in  some  quarters 
there  is  dissatisfaction  with  the  ark.  itself.  The 
popular  magazines  are  full  of  articles  upon  ju- 
dicial aggression,  judicial  oligarchies,  and  the 
lucubrations  of  ingenious  laymen,  who,  uncon- 
strained by  any  embarrassment  through  know- 
ledge of  law  or  of  the  functions  or  powers  of  the 
judiciary,  cheerfully  lay  at  the  doors  of  the 
courts  all  the  ills  of  our  body  politic.  The  leg- 
islatures and  constitutional  conventions  are  de- 
bating proposals  for  the  recall  of  judges,  and 
the  bar  associations  are  adding  to  the  general 

33 


THE  OLD  LAW  AND  THE  NEW  ORDER 

confusion  by  sweepingly  denouncing,  as  dema- 
gogic attacks  upon  the  courts,  all  proposals  of 
change  except  certain  excellent  though  tardy 
measures  of  procedure  reform  emanating  from 
themselves.  The  platform  of  one  political  party 
advocates  a  simplification  of  the  method  of  im- 
peachment. Between  indiscriminate  attack  and 
unreasoning  defense,  the  courts  suffer  both  from 
their  enemies  and,  if  possible,  still  more  from 
their  friends,  and  sober-minded  citizens  are  left 
without  light  or  leading. 

What  is  the  fundamental  thing  which  has 
aroused  this  tumult  of  conflicting  charges,  this 
spirit  of  bitterness,  these  recriminations  and  at- 
tacks ?  At  bottom,  the  difficulty  will  be  found 
to  be  a  change  in  the  attitude  of  the  people,  not 
towards  the  courts  themselves,  but  towards  law- 
making bodies,  and  the  desire  to  readjust  in  an 
essential  particular  constitutional  power  as  be- 
tween the  courts  and  the  lawmaking  bodies  by 
the  only  feasible  method  which  our  complicated 
system  affords  —  direct  application  of  public 
opinion. 

To  attempt  to  analyze  the  process  of  this 
change  would  be  difficult,  and  no  broad  gener- 
alization can  be  made  which  would  not  appear 

34 


COURTS   AND   LEGISLATIVE   FREEDOM 

in  some  quarter  to  be  glaringly  inaccurate.  For 
one  matter,  there  has  been  in  our  country  in 
recent  years  a  decided  growth  in  actual  democ- 
racy. Despite  occasional  flashes  of  its  ancient 
power,  government  by  political  oligarchies,  boss 
rule,  is  losing  ground.  Invisible  government  is 
giving  way  to  visible  government  of  a  better 
type.  For  another  matter  we  have  passed  indus- 
trially from  individualism  to  collectism,  and  our 
law  has  not  yet  adapted  itself  to  the  transition. 
A  condition  of  interdependence  socially  and  in- 
dustrially requires  recognition  and  regulation  by 
law.  Senator  Root  has  with  great  felicity  ex- 
pressed it  in  a  recent  address  : 

Instead  of  the  give  and  take  of  free  individual  con- 
tract, the  tremendous  power  of  organization  has  com- 
bined great  aggregations  of  capital  in  enormous  indus- 
trial establishments,  working  through  vast  agencies  of 
commerce  and  employing  great  masses  of  men  in 
movements  of  production  and  transportation  and  trade, 
so  great  in  the  mass  that  each  individual  concerned  in 
them  is  quite  helpless  by  himself.  The  relations  be- 
tween the  employer  and  the  employed,  between  the 
owners  of  aggregated  capital  and  the  units  of  organized 
labor,  between  the  small  producer,  the  small  trader, 
the  consumer,  and  the  great  transporting  and  manu- 
facturing and  distributing  agencies,  all  present  new 
questions  for  the  solution  of  which  the  old   reliance 

35 


THE  OLD  LAW  AND  THE  NEW  ORDER 

upon  the  free  action  of  individual  wills  appears  quite 
inadequate.  And  in  many  directions  the  intervention 
of  that  organized  control  which  we  call  government 
seems  necessary  to  produce  the  same  result  of  justice 
and  right  conduct  which  obtained  through  the  attrition 
of  individuals  before  the  new  conditions  arose.1 

There  is  beneath  all  a  spirit  of  restlessness  in 
the  people  not  to  be  overcome  by  soporifics  or 
reactionary  forebodings,  a  dissatisfaction  with 
things  as  they  are  and  a  demand  upon  law- 
making bodies  for  greater  service  in  harmoniz- 
ing law  to  the  requirements  of  a  changed  indus- 
trial order.  To  meet  these  new  conditions  new 
measures  are  required.  They  must  proceed 
from  lawmakers.  In  response  to  that  demand 
in  the  states  and  in  the  nation,  long-neglected 
subjects  of  legislation  are  receiving  attention. 
With  this  growing  interest  in  such  matters,  the 
lawmaker  and  those  interested  in  legislation 
upon  these  topics  find  in  certain  fundamental 
parts  of  the  work  of  legislation  a  conflict  of 
power  between  the  lawmaker  and  the  courts. 

Such  a  conflict  is  more  or  less  essential  in  any 
system  of  checks  and  balances  like  ours.  With 
us  it  has  in  fact  always  existed,  but  just  now  the 

1   Judicial  Decisions  and  Public  Feeling.    An  address   before 
the  New  York  State  Bar  Association,  January  19,  191 2. 

36 


COURTS   AND   LEGISLATIVE   FREEDOM 

force  of  public  opinion  is  more  largely  on  the 
side  of  the  lawmaker  and  those  whom  he  repre- 
sents in  the  demand  for  legislation  than  in  the 
days  when  he  was  generally  discredited  and  dis- 
trusted, and  when  he  was  less  the  representative 
of  the  people  and  more  that  of  a  boss-ridden 
party  system. 

The  sphere  of  power  of  the  lawmaker,  under 
our  present  system  of  checks  and  balances  as  in- 
terpreted by  our  courts,  is  the  arc  of  a  pendulum, 
which  has  the  phrase  "  due  process  of  law  "  at 
both  extremities.  How  wide  the  pendulum  may 
swing  depends  upon  how  far  the  courts  consider 
it  lawful  that  the  legislature  should  go  before 
coming  in  conflict  with  the  phrase. 

It  will  be  said  at  once  that  this  statement  is 
incorrect  because  every  state  constitution,  as 
well  as  that  of  the  nation,  has  a  multitude  of 
limitations  upon  legislative  action  and  the  pro- 
vision that  property  shall  not  be  taken  without 
due  process  of  law  is  only  one  of  them.  This 
criticism  is  not  without  merit.  But  the  "  due- 
process  "  clause  is  the  principal  example  of  those 
broad  general  expressions  current  in  our  con- 
stitutions, which,  not  placed  there  by  the  courts, 
are  nevertheless  to  be  construed  and  given  a 

37 


THE  OLD  LAW  AND  THE  NEW  ORDER 

meaning  and  a  force  as  limitations  of  legislative 
and  executive  power.  This  provision  is  the  great 
stumbling-block  of  the  lawmaker,  because  it  is 
not  defined  except  in  vague  generalities  by  the 
courts  and  is  not  readily  susceptible  of  defini- 
tion. For  illustration,  take  a  subject  with  which 
a  dozen  American  states  are  now  struggling  and 
on  which  there  is  an  aroused  public  opinion, — 
industrial  accidents.  A  Workmen's  Compensa- 
tion Act  is  under  legislative  consideration.  A 
bill  is  drawn  which  recognizes  as  in  Europe 
that  such  accidents  are  an  inevitable  part  of 
modern  industry  and  are  chargeable  justly  upon 
the  industry  itself,  and  provides  for  compul- 
sory compensation  by  the  employer  for  all  ac- 
cidents occurring  in  his  plant  irrespective  of 
whether  occasioned  by  his  fault.  Does  it  take 
property  without  due  process  of  law  ?  The  law- 
maker looks  to  see  what  "due  process"  is  de- 
clared to  mean  by  the  courts.  What  does  he 
learn  ?  He  learns  first  that  the  words  are  equiva- 
lent to  "  the  law  of  the  land  "  as  used  in  Magna 
Charta.  This  is  historically  interesting,  but  to 
him  of  no  practical  value.  He  then  learns,  if  he 
looks  a  little  further,  that  what  he  has  tried  to 
find  out  by  judicial  decision,  the  courts  them- 

38 


COURTS   AND   LEGISLATIVE   FREEDOM 

selves  have  refused  to  define,  except  in  terms 
which  afford  no  practical  help,  saying  that  these 
words  are  incapable  of  accurate  definition,  and 
that  it  is  wiser  to  ascertain  their  intent  and  ap- 
plication "by  the  gradual  process  of  judicial  in- 
clusion and  exclusion,  as  the  cases  presented  for 
decision  shall  require,  with  the  reasoning  with 
which  such  decisions  may  be  founded."  "  It 
must  be  confessed,"  says  the  United  States  Su- 
preme Court,  "  that  the  constitutional  meaning 
or  value  of  the  phrase  {  due  process  of  law '  re- 
mains to-day  without  that  satisfactory  precision 
of  definition  which  judicial  decisions  have  given 
to  nearly  all  the  other  guarantees  of  personal 
rights  found  in  the  constitutions  of  the  several 
states  and  of  the  United  States." 

The  courts  say, in  substance, to  the  lawmaker: 
"  We  can  give  you  no  rule  or  definition  for  this 
thing  which  shall  enable  you  to  know  what  due 
process  of  law  is  before  you  legislate,  but  if  you 
pass  some  law,  and  afterwards  it  is  questioned 
in  court,  we  can  then  tell  by  application  of  this 
indefinable  thing,  by  our  process  of  inclusion 
and  exclusion,  whether  the  particular  law  is  void 
or  not  as  taking  property  without  due  process 
of  law." 

39 


THE  OLD  LAW  AND  THE  NEW  ORDER v 

When  a  law  has  been  enacted  and  is  being 
tested  in  court,  the  brief  of  the  lawyer  who  at- 
tacks it  is  usually  full  of  illustrations  of  other 
statutes  more  or  less  like  it,  which  courts  have 
held  to  be  bad  as  taking  property  without  due 
process  of  law.  The  brief  of  the  lawyer  in  favor 
of  the  law  is  based  on  such  cases,  if  any  he  can 
find,  in  which  statutes  more  or  less  similar  have 
been  declared  valid,  and  with  these  cases  he  has 
generally  an  argument  that  this  particular  kind 
of  a  statute  which  he  desires  to  uphold  is  what 
he  calls  a  valid  exercise  of  the  police  power. 

Now,  the  legislator  is  interested  in  both  of 
these  things.  If  he  cannot  know  in  advance  what 
is  due  process  of  law  which  tells  him  what  he 
must  not  do,  he  will  be  quite  safe  about  his  stat- 
ute-making if  he  can  know  what  is  the  scope 
of  the  police  power  which  tells  him  what  he  can 
do.  Upon  searching  among  court  decisions  for 
a  definition  of  this  police  power,  so-called,  he 
finds  there  is  no  concrete  definition  of  it.  It  is 
also  incapable  of  definition.  The  courts  do  of 
course  describe  it.  In  a  thousand  decisions  it  is 
referred  to  as  the  power  of  the  lawmaking  body 
"to  promote  the  health,  peace,  morals,  educa- 
tion, and  good  order  of  the  people  by  the  enact- 

40 


COURTS   AND   LEGISLATIVE   FREEDOM 

ment  of  reasonable  regulations  for  that  pur- 
pose." 

But  since  it  is  incapable  of  exact  definition  and 
there  are  no  certain  rules  governing  it,  the  courts 
again  say  the  question  whether  a  law  is  a  valid 
exercise  of  the  police  power  must  be  determined 
by  testing  the  individual  statute  by  application. 
"With  regard  to  the  police  power  as  elsewhere 
in  the  law,  lines  are  pricked  out  by  the  gradual 
approach  and  contact  of  decisions  on  the  oppos- 
ing sides."  The  courts  will  examine  the  statute. 
If  they  find  that  in  their  judgment  the  legisla- 
ture adopted  it  in  the  exercise  of  a  reasonable 
discretion  and  based  upon  sufficient  facts,  they 
will  hold  the  law  to  be  a  valid  exercise  of  the 
police  power.  To  forbid  barbers  to  work  on 
Sunday  is  reasonable.  To  forbid  women  to  work 
at  night  is  unreasonable.  So  the  first  law  is  a 
valid  exercise  of  the  police  power,  and  the  sec- 
ond takes  liberty  and  property  without  due 
process  of  law. 

In  the  meanwhile  what  becomes  of  the  law- 
maker? He  is  endeavoring  to  respond  to  the 
demands  of  the  people  for  legislation  on  ques- 
tions which,  without  any  constitutional  puzzles 
injected  into  them,  are  in  themselves  difficult  in 

4i 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  extreme.  New  conditions  need  new  remedies. 
He  devises  the  new  remedy.  He  introduces  it 
as  a  bill,  which  contains  some  limitations  upon 
the  conduct  of  some  class  or  body.  It  is  de- 
bated in  committee.  It  is  amended  to  meet  ob- 
jections. It  is  debated  in  the  two  houses.  It  is 
passed.  It  is  examined  by  the  Governor  and  his 
advisers.  It  becomes  law.  Then  it  goes  to  the 
court  and  if  three  out  of  five  men,  greatly  learned 
in  law,  applying  the  judicial  mystery  of  due 
process  of  law,  decide  that  the  thing  attempted 
is,  as  they  see  it,  not  a  reasonable  exercise  of 
the  discretion  of  the  legislature  in  imposing 
the  restraint  or  regulation  proposed,  the  wis- 
dom of  the  two  branches  of  the  legislature  and 
of  the  Governor  is  overcome.  The  law  is  not 
a  law. 

The  thing  which  the  courts  in  these  decisions 
are  dealing  with  is  that  process  of  adjustment, 
inevitable  in  law  as  in  life,  between  the  rights 
and  liberties  of  the  individual  and  the  rights  and 
necessities  of  society.  The  police  power,  so-called, 
is  in  law  the  branch  which  expresses  the  expand- 
ing needs  of  society  and  through  which  its  de- 
mands upon  the  individual  are  made.  Society 
asserts,  by   legislation   based   upon  the   police 

42 


COURTS   AND   LEGISLATIVE   FREEDOM 

power,  the  necessities  of  social  coordination  for 
the  development  of  the  state.  The  individual — 
or  more  often  some  one  pretending  to  act  in  his 
interest  —  resists,  through  the  "due-process" 
clause,  the  encroachments  of  society  upon  "na- 
tural "  right. 

The  problem  thrust  upon  the  courts  is  the 
duty  of  harmonizing,  without  set  rules  or  chart 
or  compass,  the  relations  of  man,  the  individual, 
to  the  society  in  which  he  must  belong.  Plato 
declared  that  he  was  ready  to  follow  as  a  god 
any  man  who  knew  how  to  combine  in  his  con- 
duct the  law  of  the  one  and  the  law  of  the  many. 
How  infinitely  more  difficult  the  task  of  prescrib- 
ing such  conduct  not  for  one's  self  only,  but  for 
the  one  and  the  many  of  a  complex  state.  It  is 
the  most  difficult  of  tasks.  It  is  imposed  upon 
no  other  courts  than  ours  in  the  world.  The 
duty  which  Milton  took  upon  himself  in  his 
epic  of  justifying  the  ways  of  God  to  man  is  in 
our  time  only  paralleled  by  the  duty  of  Ameri- 
can courts  of  justifying  the  ways  of  society  to 
man  and  of  man  to  society. 

The  theory  of  procedure  in  this  process  of 
justification,  to  be  sure,  is  simple.  Show  us,  say 
the  courts,  a  necessity  of  society  so  great  as 

43 


THE  OLD  LAW  AND  THE  NEW  ORDER 

to  require  the  subordination  of  the  personal 
rights  of  the  individual  to  the  greater  demands 
of  the  aggregation  of  individuals  composing  the 
whole  and  we  will  sustain  the  law  which  causes 
that  subordination.  Show  us  a  case  where  for 
an  alleged  social  need,  but  having  no  just  cause 
or  basis,  the  rights  of  the  individual  are  threat- 
ened with  arbitrary  destruction,  and  we  will  in 
turn  protect  the  individual  from  such  a  law  by- 
declaring  that  his  life,  liberty  or  property  cannot 
be  taken  without  due  process  of  law. 

The  essential  conflicts  between  the  courts  and 
legislatures  on  these  subjects  are  over  questions 
of  fact.  The  legislature  says,  for  example,  We 
have  found  as  a  fact  a  social  necessity  for  limit- 
ing the  hours  of  labor  of  bakers.  We  have 
examined  into  the  condition  of  their  work  and 
find  that  their  welfare,  and  thereby  the  welfare 
of  society,  requires  such  limitation.  The  Supreme 
Court  of  the  United  States  says  that  there  are 
no  reasonable  grounds  for  believing  that  such 
social  necessity  exists,  and  it  finds  the  law  to 
be  unconstitutional  in  taking  away  the  baker's 
liberty. 

As  to  the  hours  of  women  in  laundries  and 
men  in  mines,  the  court  approves  the  legisla- 

44 


COURTS   AND   LEGISLATIVE   FREEDOM 

tive  finding  of  social  fact,  declaring  these  to  be 
cases  "  where  the  legislature  has  adjudged  that 
a  limitation  is  necessary  for  the  preservation  of 
the  health  of  such  employees  and  there  are 
reasonable  grounds  for  believing  that  such  deter- 
mination is  sustained  by  the  facts.  The  question 
in  each  case  is  whether  the  legislature  has  adopted 
the  statute  in  the  exercise  of  a  reasonable  dis- 
cretion or  whether  its  action  be  a  mere  excuse 
for  an  unjust  discrimination  or  the  oppression 
or  spoliation  of  a  particular  class." 

The  opportunity  for  conflict  between  the 
legislature  and  the  courts  on  questions  of  social 
fact  is  apparent.  In  this  conflict  public  opinion 
finds  itself  more  and  more  on  the  side  of  the 
legislature.  This  shift  in  public  opinion  does 
not  come  because  the  majority  of  people  are 
convinced  that  legislators  are  wiser  than  courts 
or  less  prone  to  make  mistakes,  but  is  born  of 
a  more  general  realization  of  the  fact  that  solu- 
tions for  industrial  and  economic  questions  are 
necessarily  legislative  ones,  and  that  to  deny  the 
legislator  the  power  to  make  mistakes  is  also 
to  deny  him  the  power  to  remedy  or  correct  evils 
which  can  receive  correction  only  through  legis- 
lation. Underlying  a  great  part  of  the  current 

45 


THE  OLD  LAW  AND  THE  NEW  ORDER 

discussion  of  the  judiciary  and  as  amain  basis  for 
the  recall-of-judges  nostrum  is  this  matter  of  the 
potential  domination  of  the  legislative  idea  of 
reasonableness  by  the  judicial  idea  of  reasonable- 
ness. 

The  irritation  and  impatience  manifested 
towards  the  courts  thus  engendered,  the  con- 
servative deprecates  and  deplores.  As  a  process 
of  adjustment  of  such  difficulties  he  repeats  the 
time-honored  argument  that  the  true  remedy  is 
to  meet  these  conflicts  one  by  one  with  the 
cumbrous,  difficult,  and  dilatory  procedure  of 
piecemeal  constitutional  amendment.  The  sug- 
gestion that  the  situation  can  be  met  in  any 
other  fashion  or  by  any  change  of  attitude  of 
the  courts  themselves,  he  regards  as  sheer  dema- 
gogy. What  the  conservative  refuses  to  see,  in 
his  resistance  to  the  new  forces  in  public  opinion, 
is  that  the  more  progressive  or  radical  influences 
in  our  society  are  themselves  endeavoring  to 
accomplish  an  essential  conservative  reform 
through  this  insistence  upon  the  recognition  by 
the  courts  of  the  need  of  greater  legislative 
freedom.  That  they  are  endeavoring  to  find  a 
modus  vivendi  in  our  constitutions  for  an  ancient 
and  time-honored  clause  which,  upon  the  con- 

46 


COURTS   AND   LEGISLATIVE   FREEDOM 

servative's  own  logic,  they  should  seek  to 
repeal. 

It  is  essential  that  we  should  see  the  true 
nature  of  this  conflict  and  the  alternative  which 
it  affords.  We  must  do  one  of  two  things, 
either  determine  to  continue  our  courts  in  their 
present  position  of  harmonizers  between  the 
individual  and  society  and  thereby  continue  in 
form  and  theory  their  present  power  over  legis- 
lation, looking  to  the  courts  themselves  for 
such  practical  modification  of  their  exercise  of 
that  power  as  shall  give  a  necessary  leeway  to 
legislation,  or,  what  has  not  yet  been  suggested, 
we  must  abolish  vague  constitutional  limitations 
and  decide  that  an  impracticable  and  unwork- 
able power  of  the  courts  over  legislatures  should 
be  removed  by  a  repeal  of  the  clause  or  clauses 
of  the  constitutions  forming  the  basis  for  its 
existence. 

As  a  conservative  as  well  as  a  practical  people, 
we  are  trying  the  first  of  these  alternatives. 
Without  changing  the  theory  of  judicial  power 
in  any  fundamental  way,  we  are  seeking  to 
have  it  practically  so  applied  by  the  courts  as 
to  enlarge  the  province  of  legislation.  We  are 
endeavoring  to  accomplish   this  largely    by    a 

47 


THE  OLD  LAW  AND  THE  NEW  ORDER 

severe  criticism  of  judicial  decisions  which  inter- 
fere with  what  many  now  recognize  as  an  essen- 
tial part  of  legislative  freedom. 

We  are  asking  to  have  the  courts  themselves 
recognize  an  extension  of  the  ordinary  domain 
of  legislative  power,  that  is,  the  domain  in  which 
the  lawmaker  may  enact  his  statute  without 
being  obliged  to  claim  justification  for  what  he 
enacts  in  any  special  plea  of  social  necessity, — 
the  police  power.  The  extent  of  this  common 
field  of  legislation  depends  largely  upon  the 
breadth  of  action  permitted  by  the  courts  in 
their  definition  of  due  process  of  law.  One  defi- 
nition of  the  test  for  due  process  in  the  consti- 
tutional sense  of  the  term  has  been  laid  down 
by  many  decisions  of  the  courts. 

We  must  examine  the  constitution  itself  to  see 
whether  this  process  be  in  conflict  with  any  of  its 
provisions.  If  not  found  to  be  so,  we  must  look  to 
those  settled  usages  and  modes  of  procedure  existing 
in  the  common  and  statute  law  of  England  before  the 
emigration  of  our  ancestors  and  which  are  shown  not 
to  have  been  unsuited  to  their  civil  and  political  con- 
dition by  having  been  acted  on  by  them  after  the  set- 
tlement of  this  country. 

More  briefly  they  describe  it  as  "  a  conformity 

48 


COURTS   AND   LEGISLATIVE   FREEDOM 

with   the   ancient   and   customary    laws   of  the 
English  people." 

If  the  basis  for  determining  whether  we  can 
do  certain  things  legally  in  the  twentieth  cent- 
ury is  to  be  found  by  ascertaining  whether  they 
could  legally  have  been  done  in  England  at  or 
prior  to  the  4th  day  of  July,  1776,  the  problem 
of  grasping  new  conditions  in  new  ways  by  new 
laws  is  made  infinitely  difficult.  The  touchstone 
for  progress  then  becomes  not  solely  the  needs 
of  the  present,  but  the  extent  to  which  these 
needs  can  be  met  by  the  application  of  histor- 
ical precedents  of  the  past.  Nations  are  incap- 
able of  growth  in  any  such  fashion  by  any  such 
method. 

It  is  doubtless  true  that,  historically,  due 
process  of  law,  as  understood  and  applied  in 
England  from  the  days  of  Magna  Charta  to  the 
time  we  adopted  our  Constitution,  contained 
far  fewer  limitations  upon  executive  and  legis- 
lative powers  than  those  which  have  been  con- 
strued into  it  by  American  courts  in  the  past 
hundred  years.  But  it  is  the  method  of  pro- 
gress which  is  important.  No  man  can  run 
forward  freely  while  continually  looking  back- 
ward. 

49 


THE  OLD  LAW  AND  THE  NEW  ORDER 

There  is,  however,  another  view  of  due  pro- 
cess consistent  with  national  growth.  As  the 
Supreme  Court  of  the  United  States  has 
said:  — 

The  Constitution  of  the  United  States  was  ordained, 
it  is  true,  by  descendants  of  Englishmen  who  inher- 
ited the  traditions  of  English  law  and  history,  but  it 
was  made  for  an  undefined  and  expanding  future  and 
for  a  people  gathered  and  to  be  gathered  from  many 
nations  and  from  many  tongues,  and  while  we  take 
just  pride  in  the  principles  and  institutions  of  the 
common  law,  we  are  not  to  forget  that  in  lands  where 
other  systems  of  jurisprudence  prevail,  the  ideas  and 
processes  of  civil  justice  are  also  not  unknown.  .  .  . 
There  is  nothing  in  Magna  Charta,  rightly  construed 
as  a  broad  charter  of  public  right  and  law,  which 
ought  to  exclude  the  best  ideas  of  all  systems  and  of 
every  age,  and  as  it  was  the  characteristic  principle 
of  the  common  law  to  draw  its  inspiration  from  every 
fountain  of  justice,  we  are  not  to  assume  that  the 
sources  of  its  supply  have  been  exhausted.  On  the 
contrary,  we  should  expect  that  the  new  and  various 
experiences  of  our  own  situation  and  system  will 
mould  and  shape  it  into  new  and  not  less  useful  form. 

The  theories  of  due  process  of  law,  the  nar- 
row one,  which  makes  its  touchstone  history 
and  the  settled  usages  and  modes  of  procedure 
used  in  England  prior  to  our  independence, 
and  the  broad  one,  which  sets  aside  all  such 

50 


COURTS   AND  LEGISLATIVE   FREEDOM 

limitations  and  gives  the  phrase  the  expansive 
power  by  which  there  may  be  created  in  America 
law  not  only  for  the  descendants  of  English- 
men, but  for  a  people  gathered  from  many  na- 
tions and  many  tongues,  express  an  actual  but 
not  yet  fully  recognized  conflict  between  the 
courts  themselves. 

The  expansionist  and  the  contractionist  no- 
tions of  due  process  of  law  are  expressed  in 
many  judicial  decisions.  They  conflict  at  times 
in  the  decisions  of  the  same  courts.  Both  can- 
not live.  The  permanence  of  our  constitutions 
in  their  present  form  depends  upon  the  estab- 
lishment of  a  broad  doctrine  of  legislative 
power.  What  may  be  called  the  expansionist 
theory  is  to-day  rapidly  gaining  ground.  The 
notion  that  the  courts  form  an  adamantine  bar- 
rier to  progress  is  false.  They  do  not  bow  to 
every  fitful  breath  of  change.  Some  judges 
move  more  slowly  than  others,  to  be  sure,  in 
adapting  the  law  to  the  settled  will  of  the  peo- 
ple. But  to  that  will  they  do  conform.  What 
is  taking  place  is  a  slow  but  sure  change  under 
the  pressure  of  formulated  public  opinion  in  the 
character  and  scope  of  the  constitutional  limita- 
tion of  due  process  of  law.'  Even  when  found 

5i 


THE  OLD  LAW  AND  THE  NEW  ORDER 

by  many  most  alarming,  the  movement  from 
which  this  pressure  comes  is  essentially  a  con- 
servative one.  Nowhere  has  there  been  from 
any  respected  source  the  suggestion  that  the 
whole  framework  of  our  constitutional  system 
should  be  destroyed  or  that  the  power  of 
the  courts  to  annul  acts  which  contravene  the 
clause  should  itself  be  destroyed.  This  in  it- 
self is  a  tribute  to  the  courts.  If  the  people 
were  satisfied  that  the  power  to  declare  laws 
unconstitutional  under  the  due  process  clause 
had  been  in  the  main  detrimental  to  their  best 
interests,  that  its  continuance  was  necessarily 
or  essentially  a  menace  to  the  progress  of  the 
nation,  the  reform  movement  would  have  a  dif- 
ferent programme.  "  No,"  said  the  old  farmer, 
"  I  don't  want  a  divorce  ;  what  I  want  is  a  leetle 
more  freedom  on  lodge  nights." 

The  people  do  not  desire  to  abolish  the  an- 
cient landmarks.  There  is  as  yet  no  expressed 
desire  on  the  part  of  any  group  or  party  to  take 
from  the  courts  the  power  to  test  legislation  by 
ascertaining  whether  it  conforms  to  natural  and 
inherent  principles  of  justice,  or  the  power  to 
forbid  that  one  man's  rights  or  property  shall  be 
taken  for  the  benefit  of  another  or  for  the  bene- 

52 


COURTS   AND   LEGISLATIVE   FREEDOM 

fit  of  the  state  without  compensation,  or  that 
any  man  should  be  condemned  in  his  person  or 
property  without  an  opportunity  of  being  heard 
in  his  own  defense. 

No  other  country  in  the  world  permits  its 
courts  to  test  or  to  approve  or  condemn  legis- 
lation by  the  application  of  any  vague  concept 
such  as  "natural  and  inherent  principles  of  jus- 
tice "  or  by  the  interpretation  of  phrases  incapa- 
ble of  approximately  exact  meaning  which  law- 
makers can  know  in  advance.  In  theory,  at  least, 
the  continuance  of  a  constitutional  system  for 
governing  ninety  millions  of  people  on  such  a 
basis  involves  peril  if  not  disaster.  "Yes,"  said 
an  English  barrister  to  me  some  months  ago, 
"  things  are  pretty  bad  with  us  just  now.  A  lot 
of  this  Lloyd  George  legislation  is  stuff  and  non- 
sense, too.  Of  course  Parliament  had  to  do  some- 
thing, though,  and  with  us,  to  be  sure,  it  has  a 
pretty  free  hand,  but,"  he  added  cheerfully,  "  if 
we  were  tied  up  with  your  Constitution  we  should 
be  having  a  civil  war." 

A  civil  war  is  too  remote  a  prospect  to  arouse 
in  an  American  much  sense  of  alarm.  Our  nat- 
ural resources  are  still  vast.  The  field  of  indi- 
vidual opportunity,  though  narrowing,  is  still 

S3 


THE  OLD  LAW  AND  THE  NEW  ORDER 

large.  The  sense  of  any  impending  peril  which 
requires  a  fundamental  revision  in  our  system 
of  government,  our  theory  of  national  life,  is 
still  unfelt.  We  do  realize  the  need  of  a  change 
in  the  theory  of  legislative  power  which  shall 
give  the  lawmaker  more  freedom.  Some  of  us 
are  aroused  to  this  need  by  problems  of  labor: 
the  Lawrence  strike,  the  McNamara  and  Hay- 
wood affairs ;  some  by  problems  of  capital,  by 
the  trust  investigations ;  while  the  high  cost  of 
living  has  influenced  the  unthinking  mass.  The 
result  is  a  desire  to  readjust  the  position  of  the 
courts  in  the  general  system  of  our  government. 
The  recall  of  judges  is  only  in  small  measure 
due  to  a  desire  to  get  rid  of  judges,  but  more 
largely  to  a  desire  to  remind  them  by  its  crude 
potentialities  of  their  duties  to  society  as  well 
as  to  the  individual.  The  recall  of  decisions  is 
brought  forward  as  a  more  conservative  and 
juster  proposition  having  the  same  general  end 
in  view,  as  a  plan  under  which  due  process  of 
law  in  its  final  analysijs  is  to  be  determined  by 
the  people  who  put  the  words  in  the  constitu- 
tion for  the  judges  to  follow  and  who  put  the 
judges  in  their  places  to  interpret  these  words. 
Instead  of  attempting  to  terrorize  the  judge  by 

54 


COURTS   AND   LEGISLATIVE   FREEDOM 

the  threat  of  personal  punishment  through  the 
recall,  instead  of  repealing  the  due  process  clause, 
instead  of  adopting  amendments  to  our  consti- 
tutions, necessarily  broad  and  general,  and  con- 
ferring large  and  possibly  dangerous  powers  on 
legislators  in  advance  of  legislation,  it  proposes 
to  refer  a  specific  law,  with  the  objections  of  the 
courts  to  its  constitutionality,  to  the  people. 
Whatever  the  practical  difficulties  may  be  to  its 
operation,  its  theory  is  not  radical  but  conserva- 
tive. 

It  proposes  that  the  question  whether  a  meas- 
ure is  due  process  of  law  shall  be  tested  by  the 
judgment  of  the  legislature  and  the  courts  and, 
when  they  disagree,  by  the  sober  judgment  of 
the  people  who  created  both.  Ohio,  in  her  con- 
stitutional convention,  has  submitted  to  the  peo- 
ple with  general  approval  the  proposition  that 
no  law  shall  be  declared  unconstitutional  unless 
five  out  of  six  of  the  judges  of  her  supreme  court 
concur. 

Other  proposals  with  like  objects  are  made. 
The  debates  over  them  produce  charges  and 
countercharges.  The  forces  of  reaction,  the  per- 
petual minority,  which  in  all  ages  has  believed 
in  the  continuance  of  things  as  they  are,  the  con- 

55 


THE  OLD  LAW  AND  THE  NEW  ORDER 

servatives  who  see,  as  they  believe,  the  threat- 
ened destruction  of  the  safeguards  of  freedom, 
the  still  larger  class  which  believes  that  the  Amer- 
ican people  are  as  yet  only  partially  capable  of 
self-government,  find  themselves  arrayed  in  de- 
fense of  a  theory  of  judicial  power  which  is  out  of 
harmony  with  the  new  programme  of  democracy. 
This  programme  has  for  its  initial  purpose  the 
more  direct  participation  of  the  people  in  their 
own  government  and  in  the  selection  of  their  re- 
presentatives, and  a  more  direct  sense  of  respon- 
sibility by  those  representatives  to  the  people. 
Its  first  period  is  still  one  in  which  questions  to 
be  debated  are  largely  matters  of  machinery.  The 
direct  primary,  the  presidential  preference  pri- 
mary, the  initiative,  the  referendum,  the  recall, 
the  direct  election  of  the  United  States  Senators, 
are  not  ends  of  democracy,  they  are  the  means 
by  which  democracy  seeks  to  express  itself.  H  ow 
it  shall  express  itself  is  another  matter.  The  part 
of  this  programme  which  affects  the  courts  is  that 
which  seeks  to  bring  them  in  line  with  this  move- 
ment by  compelling  them  to  recognize  a  shift  in 
the  balance  of  power,  a  necessary  change  in  their 
relation  to  a  system  which  must  depend  for  its 
strength,  its  efficiency,  and  its  growth  upon  the 

56 


COURTS   AND   LEGISLATIVE   FREEDOM 

power  to  create  and  not  on  the  power  to  compli- 
cate or  prevent.  The  ark  of  the  Constitution  is 
not  to  be  destroyed,  nor  the  priests  driven  from 
the  temple  of  justice.  But  the  ark  exists  not  for 
the  priests  or  the  Levites,  but  for  an  expanding 
nation.  Its  safe  place  is  not  in  a  temple,  but  in 
the  hearts  of  a  people  whom  it  guides,  protects, 
and  serves. 


Ill 

Treadmill  Justice 


Ill 

Treadmill  Justice 

In  a  memorable  summary  of  the  progress  in 
the  administration  of  justice  during  the  Victor- 
ian period,  one  of  the  most  scholarly  and  learned 
of  modern  English  judges,  the  late  Lord  Justice 
Bowen,  speaking  of  the  reforms  effected  in  ju- 
dicial procedure  in  England,  and  their  result, 
said :  — 

In  every  case,  whatever  its  character,  every  possible 
relief  can  be  given  with  or  without  pleadings,  with  or 
without  a  formal  trial,  with  or  without  discovery  of  doc- 
uments or  interrogatories,  as  the  nature  of  the  case  pre- 
scribes —  upon  oral  evidence  or  upon  affidavits,  as  is 
most  convenient.  Every  amendment  can  be  made  at 
all  times  and  all  stages,  in  any  record,  pleading,  or  pro- 
ceeding, that  is  requisite  for  the  purpose  of  deciding  the 
real  matter  in  controversy.  It  may  be  asserted  without 
fear  of  contradiction  that  it  is  not  possible  in  the  year  1887 
for  an  honest  litigant  in  Her  Majesty's  Supreme  Court  to 
be  defeated  by  any  mere  technicality,  any  slip,  any  mistaken 
step, in  his  litigation.  .  .  .  Law  has  ceased  to  be  a  scien- 
tific game  that  may  be  won  or  lost  by  playing  some 
particular  move. 

6l 


THE  OLD  LAW  AND  THE  NEW  ORDER 

This  proud  affirmation  of  judicial  progress 
which  a  distinguished  jurist  was  able  to  make 
twenty  years  ago  as  to  conditions  in  England,  is 
in  strong  contrast  to  a  statement  made  by  ex-Pre- 
sident Taft  when,  in  the  beginning  of  an  address  in 
New  York  on  the  "Delays  and  Defects  in  the  En- 
forcement of  Law  in  this  Country,"  he  said  :  — 

If  one  were  to  be  asked  in  what  respect  we  had  fallen 
furthest  short  of  ideal  conditions  in  our  whole  gov- 
ernment, I  think  he  would  be  justified  in  answering,  in 
spite  of  the  failure  that  we  have  made  generally  in  mu- 
nicipal government,  that  the  greatest  reform  which 
could  be  effected  would  be  expedition  and  thoroughness 
in  the  enforcement  of  public  and  private  rights  in  our 
courts.  I  do  not  mean  to  say  that  the  judges  of  the 
courts  are  lacking  either  in  honesty,  industry,  or  know- 
ledge of  the  law;  but  I  do  mean  to  say  that  the  ma- 
chinery of  which  they  are  a  part  is  so  cumbersome  and 
slow  and  expensive  for  the  litigants,  public  and  private, 
that  the  whole  judicial  branch  of  the  government  fails 
in  a  marked  way  to  accomplish  certain  of  the  purposes 
for  which  it  was  created. 

The  first  impression  of  ex-President  Taft's 
statement  upon  the  average  reader  is  that  it  is  an 
exaggeration :  that  while  no  doubt  there  is  need  of 
reform  in  legal  methods,  nevertheless,  to  give  to 
the  reform  of  legal  procedure  such  transcendent 
importance  is  to  over-emphasize  its  relative  value. 

62 


TREADMILL   JUSTICE 

But  this  first  impression  vanishes  when  we  con- 
sider that  but  for  the  record  —  and  that  by  no 
means  perfect  —  of  our  poorest-paid  judiciary, 
the  judges  of  the  federal  courts,  the  ultimate  fail- 
ure of  graft  prosecutions  and  the  punishment  of 
rich  men  and  dishonest  corporations  all  over  the 
country  has  been  almost  uniform ;  when  we  re- 
call the  humiliating  collapses,  elsewhere,  of  our 
criminal  law,  its  demonstrated  failure  in  so  many 
cases  to  protect  the  public  against  crime  by  pun- 
ishment of  conspicuous  public  offenders ;  when 
we  study,  for  example,  the  criminal  law  of  Mis- 
souri and  the  frightful  record  of  its  inefficiency 
in  the  battle  between  the  honest  people  of  St. 
Louis  and  their  plunderers;  when  we  study  the 
situation  in  San  Francisco  and  see  what  bulwarks 
for  crime  could  be  found  in  California's  higher 
courts,  there  can  be  no  doubt  that  law  reform 
is  a  vital  issue  in  America  to-day. 

No  one  can  read  the  reports  of  the  transac- 
tions of  the  national  and  state  bar  associations 
in  our  country  without  being  struck  with  the  in- 
crease in  law-reform  propositions  which  are  there 
found  in  the  topics  of  discussion  and  in  the  sub- 
jects of  papers  read.  The  lawyers  who  conduct 
these  discussions  and  prepare  these  papers,  and 

63 


THE  OLD  LAW  AND  THE  NEW  ORDER 

appear  in  them  as  advocates  of  specific  improve- 
ments in  legal  machinery,  are,  moreover,  not 
the  young  and  restless  members  of  the  bar,  but 
the  leaders  of  the  profession,  whose  standing 
gives  weight  and  authority  to  their  advocacy. 

In  this  movement  there  is  no  occasion  for 
general  attacks  upon  the  judiciary.  The  yellow 
press,.to  which  a  technical  judge  and  an  eloping 
parson  are  objects  of  equal  interest,  can  be  relied 
upon  to  misrepresent  the  actual  condition  of 
our  jurisprudence  without  assistance  from  sober- 
minded  lawyers  or  laymen.  Many  of  the  defects 
in  our  law  which  require  a  remedy  are  judge- 
made,  no  doubt.  But  the  idea  that  the  judiciary 
is  responsible,  and  solely  responsible,  for  all 
our  troubles  in  the  bad  workings  of  over-com- 
plicated law  machinery  is  at  once  absurd  and 
unjust.  The  courts  of  New  York,  for  example, 
never  devised  that  monster  civil  code,  of  nearly 
thirty-five  hundred  sections,  which  governs  by 
set  rules  everything  but  the  home  life  of  the 
lawyers  and  judges,  and  prescribes  with  inflex- 
ible precision  a  myriad  matters  which  demand 
neither  inflexibility  nor  precision.  The  judges 
are  not  responsible  for  obscure  and  badly  writ- 
ten statutes,  the  interpretation  of  which  requires 

64 


TREADMILL  JUSTICE 

the  full  powers  of  clairvoyants,  few  of  whom,  it 
must  be  admitted,  are  upon  the  bench.  When 
the  legislatures  lay  down  fixed  rules  in  statutory- 
enactments  for  judges  to  follow,  it  is  not  the 
fault  of  the  judge  if  his  oath  of  office  compels 
him  to  follow  where  he  is  far  more  fit  to  lead. 
Where,  for  example,  the  statute  law  of  a  state 
requires  the  judge  in  his  charge  to  the  jury  not 
to  discuss  the  facts  of  the  case,  but  merely  to 
hand  to  the  foreman  some  abstract  statements 
of  law  for  laymen  to  apply  as  best  they  may,  it 
is  no  fault  of  the  judge  if  the  applications  of 
the  law  made  by  the  jury  are  at  times  bizarre  in 
the  extreme. 

The  spirit  of  law  reform  which  is  healthful, 
and  which  is  likely  to  effect  results,  must  be  one 
whose  motive  is  not  the  placing  of  blame  upon 
some  scapegoat, — jurist  or  legislator,  —  but 
rather  the  correction  of  defects  in  machinery, 
however  occasioned,  and  the  evolution  of  a 
better  system  of  justice. 

It  is  entirely  logical  and  proper  that  in  our 
desire  to  reform  our  methods  of  legal  proced- 
ure, we  should  study  the  effect  of  law  reform 
in  England.  The  main  impulse  toward  law  re- 
form there,   beginning  over  seventy-five  years 

65 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ago,  came  from  the  observation  by  discontented 
English  critics  of  the  salutary  effect  of  law 
reform  in  America,  for  we  took  the  first  great 
forward  step  in  abolishing  cumbrous  and  anti- 
quated machinery  and  substituting  more  direct 
methods.  It  is  only  fair  therefore,  when  we  in 
turn  are  taking  thought  as  to  still  further  re- 
forms and  improvements  here,  that  we  should 
look  to  England  and  see  what  suggestions  she 
may  have  for  us,  in  return  for  those  which  we 
made  and  she  profited  by  over  half  a  century  ago. 
Dealing  in  this  paper  solely  with  the  ma- 
chinery of  civil  litigation,  one  fundamental  dif- 
ference between  English  and  American  methods 
which  should  be  of  interest  to  us  is  the  relatively 
greater  importance  attached  there  to  what  may 
be  called  the  stopping-point  in  litigation.  By 
this  is  meant  something  more  than  speed  in  get- 
ting to  trial  and  being  heard.  It  is  speed  not 
only  in  getting  into  court,  but  also  in  getting 
out  of  court,  which  the  English  have  admirably 
provided  for  in  their  judicial  system.  With  us 
this  last  feature  has  as  yet  received  little  atten- 
tion. It  is  because,  in  the  writer's  judgment, 
our  indifference  to  the  litigant's  right  to  stop  is 
a  fundamental  and  far-reaching  defect  of  Amer- 

66 


TREADMILL  JUSTICE 

ican  judicial  machinery,  that  this  paper  is  writ- 
ten to  discuss  it,  and  some  of  its  most  obvious 
and  important  consequences. 

Two  questions  which  are  asked  every  day  in 
lawyers'  offices  all  over  the  world  are,  how  much 
it  will  cost,  and  how  long  it  will  take.  It  is  of 
the  highest  practical  importance,  to  both  the 
lawyer  and  his  client,  that  satisfactory  answers  be 
made  to  both  of  these  queries.  They  can  scarcely 
be  answered  separately.  A  lawsuit  which  takes 
years  to  dispose  of  is  bound  to  cost,  in  propor- 
tion, more  than  one  which  can  bespeedily  brought 
to  a  termination.  The  English  system  recog- 
nizes this,  and  has  adequate  facilities  for  term- 
ination of  litigation  by  a  final  judgment.  A  case 
can  be  heard  and  decided  in  the  High  Court  a 
month  after  it  has  begun ;  and  if  an  appeal  be 
taken,  it  can  be  heard  and  finally  decided  and 
ended  in  the  Court  of  Appeal  five  months  later. 
Only  a  tenth  of  the  cases  tried  in  England  in 
the  High  Court  are  appealed  at  all,  and  of  the 
appealed  cases  very  few  are  ordered  re-tried. 

Compared  with  the  great  dispatch  character- 
istic of  English  litigation,  the  interminableness 
of  our  own  makes  an  extraordinary  contrast. 
One  prevalent  cause  of  that  interminableness  is 

67 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  unlimited  and  senseless  scope  of  the  right 
of  appeal.  In  Illinois  there  are  six  kinds  of  fre- 
quently occurring  cases  in  which  the  delays  of 
reaching  ajinal  judgment  are  extraordinary.  The 
case  is  tried  and  decided  first  in  the  County 
Court.  An  appeal  can  then  be  taken  to  the  Cir- 
cuit Court,  where  the  witnesses  again  must  be 
called  and  the  whole  case  re-tried  as  though  no 
previous  trial  had  taken  place,  and  in  complete 
disregard  of  the  proceedings  and  judgment  of 
the  County  Court.  The  defeated  party  may  then 
again  appeal  to  the  Appellate  Court,  where  the 
case  is  heard  on  a  printed  record  ;  and  from  that 
court,  on  a  similar  printed  record,  if  still  defeated, 
he  may  go  to  the  Supreme  Court  of  the  state. 
In  case  there  has  been  no  error  committed  in  the 
court  below,  the  lawsuit,  after  having  been  de- 
cided four  times,  may  come  to  an  end  in  two 
and  a  half  to  three  years  after  it  was  begun. 

The  folly  of  a  system  which  permits  a  litigant 
to  require  a  re-trial  of  the  whole  case,  as  though 
the  first  trial  had  never  occurred,  simply  because 
the  defeated  party  desires  it,  and  without  any 
proof  whatever  that  any  error  or  injustice  was 
committed  in  the  first  trial,  seems  too  patent  for 
discussion.  It  is  all  the  worse  when  this  method 

68 


TREADMILL  JUSTICE 

of  duplicate  trials  applies  to  the  small  claims  of 
the  poor  for  wages,  and  the  like,  and  puts  the 
poor  litigant  to  the  delay  and  expense  of  two 
trials  before  he  can  hope  to  get  his  rights.  This 
is  the  case  in  Pennsylvania  to-day.  A  claim  under 
a  hundred  dollars  goes  to  trial  first  before  a  mag- 
istrate. After  his  decision,  the  defeated  party 
may  appeal  to  the  Court  of  Common  Pleas,  and 
the  whole  case  then  is  re-tried  as  though  the 
first  trial  never  had  taken  place.  The  delay  and 
expense  of  these  trials  are  a  burden  on  the  hon- 
est creditor,  and  afford  every  possible  oppor- 
tunity for  dishonesty  and  "  beating  "  by  debtors. 
By  these  re-trial  methods,  a  solvent  defendant 
who  owes  a  hundred  dollars  or  less  in  Philadel- 
phia can  put  off  payment  if  he  wishes  for  two  or 
three  years. 

Another  and  more  general  form  of  legal  in- 
terminableness  is  of  a  different  kind.  It  is  caused 
by  the  re-trial  of  the  same  case  over  and  over 
again,  following  reversals  in  appellate  courts  for 
"error,"  the  effect  of  each  reversal  being  to  send 
the  case  back  where  it  started,  to  be  gone  over 
again,  the  witnesses  being  reassembled  in  court 
and  reexamined  as  though  no  trial  had  ever  been 
held. 

69 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Over  a  year  ago  the  writer  listened  to  a  law- 
yer arguing  an  appeal  in  the  Appellate  Division 
of  the  Supreme  Court  in  New  York.  It  was  a 
very  uninteresting  lawsuit  about  the  title  to  a 
small  plot  of  land  in  the  city.  At  the  close  of 
his  argument,  the  lawyer  said,  "This  case  has 
been  tried  three  times  in  the  lower  court  by 
juries,  has  been  heard  on  appeal  in  this  court 
twice,  and  once  in  the  Court  of  Appeals.  The 
expenses  of  the  litigation  already  have  absorbed 
the  value  of  this  property  in  dispute.  If  there 
be  some  way  which  the  court  can  find  for  decid- 
ing finally  this  dispute  here  in  this  court,  with- 
out requiring  it  to  be  tried  over  again,  it  will 
be  a  blessing  to  all  concerned." 

This  blessing  the  court  found  itself  unable  to 
confer,  and  six  months  later  the  case  again  was 
on  the  first  round  of  the  judicial  ladder  for  a 
new  trial  in  the  lower  court;  and  recently  it  has 
been  once  more  decided  in  the  Appellate  Court, 
and  is  now  on  its  weary  way  to  the  Court  of 
Appeals.  This  is  hardly  an  exceptional  case. 
Interminableness  in  one  form  or  another  is  a 
characteristic  of  our  judicial  method. 

In  one  of  the  fairly  recent  volumes  of  the 
New  York  Court  of  Appeals  Reports  is  con- 

70 


TREADMILL   JUSTICE 

tained  the  last  chapter  of  a  famous  and  extraor- 
dinary case,  which  is  a  gross  illustration  of  this 
interminableness,  and  an  extreme  though  char- 
acteristic example  of  its  results.  The  court  rec- 
ord of  the  last  chapter  of  this  lawsuit  is  curt 
and  obscure  ;  hardly  what  one  might  expect  for 
an  extraordinary  case.  It  consists  of  eight  words : 
"  Judgment  and  order  affirmed  with  costs.  No 
opinion."  These  eight  words  mark  the  close  of 
a  simple  accident  case  involving  no  difficult 
questions  of  law,  which  had  been  in  the  courts 
continuously  for  twenty-two  years  !  It  had  been 
tried  before  juries  seven  times.  It  had  been  ar- 
gued in  appellate  courts  ten  times.  The  final 
bill  of  costs  in  the  case,  not  including  lawyers' 
charges  or  the  cost  of  printing  seven  different 
volumes  of  testimony,  each  of  from  two  to  three 
hundred  pages,  as  required  in  the  appellate  courts 
on  the  various  appeals,  and  not  including  any 
of  defendant's  expenses  whatever,  is  over  two 
thousand  dollars.  A  conservative  estimate  of  the 
expense  of  this  litigation,  not  including  lawyers' 
fees,  probably  would  be  five  thousand  dollars. 

This  lawsuit  was  one  brought  by  a  brake- 
man,  named  Ellis  R.  Williams,  who  had  been 
employed  by  the  Delaware,  Lackawanna  and 

7i 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Western  Railroad  Company,  to  recover  damages 
from  the  railroad  company  for  personal  injuries. 
He  had  been  injured,  in  July  of  1 882,  by  strik- 
ing against  a  low  bridge  as  he  went  under  it  on 
top  of  a  box-car.  His  suit  against  the  railroad 
company  was  brought  in  December  of  that  year. 
It  was  tried  for  the  first  time,  in  1884,  before 
a  jury  in  the  Supreme  Court  at  Utica,  and  he 
obtained  a  verdict  against  the  railroad  for  four 
thousand  dollars. 

Now,  there  are  two  courts  in  New  York  to 
which  a  defeated  party  to  a  lawsuit  can  success- 
ively appeal.  First  comes  the  General  Term, 
now  known  as  the  Appellate  Division,  composed 
of  judges  of  the  Supreme  Court.  There  are  no 
juries  in  this  court,  and  the  case  is  heard  on  the 
briefs  and  arguments  of  the  lawyers  and  on  a 
printed  record  containing  the  testimony  of  the 
witnesses  in  the  court  below.  The  defeated  party 
tries  to  show  this  court  that  either  the  judge  or 
the  jury  was  wrong  in  the  lower  court.  If  he 
fails  to  convince  the  first  of  these  appeal  courts, 
he  may  again  appeal  to  the  highest  court  of  the 
state,  the  Court  of  Appeals.  The  full  course  of 
a  jury  case  in  New  York,  where  the  trial  in  the 
original  court  has  been  held  in  accordance  with 

72 


TREADMILL   JUSTICE 

the  established  rules  of  law,  is  one  trial  and  two 
appeals.  If  it  has  not  been  so  held,  one  or  the 
other  of  the  appeal  courts  usually  sends  the  case 
back  for  a  new  trial,  sends  it  back  where  it  began, 
where  it  is  tried  again  before  another  jury  as  if 
it  had  never  been  tried  before.  The  whole  process 
is  like  a  child  trying  to  climb  a  toy  ladder  with 
three  rungs.  He  begins  on  the  first,  balances 
himself,  climbs  from  the  first  to  the  second, 
loses  his  balance,  falls  back.  He  picks  himself 
up,  climbs  upon  the  first  rung,  then  to  the  sec- 
ond, then  to  the  third,  and  comes  down  with  a 
thump  on  the  floor  again.  When  he  gets  to  the 
third  rung,  and  stays  there^  the  lawsuit  is  over. 
To  give  in  detail  the  various  trials,  appeals, 
new  trials,  and  new  appeals,  in  Williams's  case 
against  the  railroad  company,  which  followed 
after  the  first  verdict  in  his  favor,  would  take 
more  time  and  patience  than  any  one  but  a  well- 
feed  lawyer  would  willingly  give  it.  Condensing 
the  story  as  much  as  possible,  it  is  enough  to 
say,  that  on  the  first  appeal  to  the  General  Term, 
the  railroad  scored.  Williams  fell  from  the  sec- 
ond rung  of  the  ladder  back  to  the  floor.  There 
had  been  a  mistake  in  the  way  the  case  had  been 
tried  in  the  court  below,  and  a  new  trial  was  or- 

73 


THE   OLD   LAW  AND   THE   NEW  ORDER 

dered.  On  the  new  jury  trial,Williams  succeeded 
again.  Once  more  the  railroad  appealed  to  the 
General  Term,  and  this  time  it  was  defeated. 
No  new  trial  was  ordered  and  the  railroad  ac- 
cordingly took  an  appeal  to  the  Court  of  Ap- 
peals. 

This  portion  of  the  lawsuit,  that  is,  up  to  the 
time  when  Williams  first  arrived  at  the  third 
rung  of  the  law  ladder,  the  Court  of  Appeals,  oc- 
cupied seven  years,  so  that  the  case  even  then 
was  a  fairly  old  one  ;  and  it  would  seem  that,  if 
there  were  some  way  in  which  a  seven-year-old 
lawsuit  could  finally  be  determined  by  the  court 
and  stopped,  it  would  be  a  good  thing  for  both 
parties.  The  court  was  in  an  excellent  position 
to  render  such  a  final  judgment.  The  record 
which  it  had  before  it,  when  this  appeal  was  heard, 
contained  all  the  testimony  which  either  party 
thought  was  material  to  the  dispute,  and  every- 
thing which  had  occurred  at  the  trial.  Among 
other  things,  it  showed  that  at  the  end  of  the 
case,  after  all  these  witnesses  had  been  examined 
and  both  sides  were  through  with  their  testi- 
mony, the  railroad  lawyer  had  asked  the  judge 
to  dismiss  the  case  without  sending  it  to  the 
jury,claiming  that,  even  accepting  Williams's  own 

74 


TREADMILL  JUSTICE 

story  as  true,  he  had  no  legal  claim  against  the 
railroad  company.  The  Court  of  Appeals,  after 
listening  to  the  lawyers  and  examining  the  printed 
testimony,  decided  that  the  railroad  lawyer  was 
right  and  the  judge  should  have  dismissed  the 
case. 

It  reached  this  conclusion  from  reading  Wil- 
liams's own  testimony.  He  admitted  that  he  had 
been  under  the  bridge  many  times  on  the  top  of 
box-cars,  and  knew  that  it  was  a  low  bridge  and 
dangerous ;  yet  he  had  turned  his  back  to  it  as 
the  car  went  under  it  on  the  day  of  the  accident, 
and  had  been  struck  while  thus  walking  toward 
the  rear  of  the  car.  In  view  of  this  testimony  of 
Williams  himself,  the  Court  of  Appeals  was  of 
the  opinion  that  the  judge  who  presided  at  the 
jury  trial  had  been  wrong  in  not  dismissing  the 
case. 

Now,  to  the  mind  of  an  ordinary  business  man, 
it  would  seem  as  if  this  was  the  logical  place  for 
this  lawsuit  to  stop.  It  would  seem  as  if  there  was 
only  one  thing  now  left  to  be  done,  and  that  was, 
by  some  appropriate  judicial  red  tape,  to  end  the 
case  in  the  railroad's  favor.  The  Court  of  Ap- 
peals in  New  York  is  empowered,  as  the  high- 
est courts  in  other  states  generally  are,  "  to  grant 

75 


THE   OLD   LAW  AND   THE   NEW  ORDER 

to  either  party  such  judgment  as  such  party  may 
be  entitled  to."  But  instead  of  stopping  a  law- 
suit which  then  had  been  in  the  courts  contin- 
uously for  seven  years,  and  on  the  full  merits  of 
which  it  had  just  decided,  it  started  the  wheels 
of  litigation  over  again.   It  granted  a  new  trial. 

Now,  Williams  had  been  badly  hurt,  and  his 
injuries  were  such  as  to  appeal  to  a  jury.  Dur- 
ing the  seven  years  of  this  litigation  he  had  twice 
had  verdicts  of  sums  which  must  have  seemed 
large  to  him,  and  he  probably  had  built  many 
hopes  on  receiving  the  money  the  jury  had 
awarded  him.  All  these  hopes  were  now  de- 
stroyed. The  Court  of  Appeals  had  decided, 
substantially  on  his  own  story  as  he  had  told  it  to 
the  jury,  that  he  was  not  entitled  to  damages 
from  the  railroad  company. 

It  is  not  in  human  nature  to  accept  tamely 
and  humbly  such  a  killing  decree  without  an  ef- 
fort to  escape  it.  It  is  not  in  human  nature  for 
a  man  who  has  been  for  seven  years  fighting  in 
the  courts  a  hotly  contested  lawsuit,  which  has 
twice  been  decided  in  his  favor,  to  acquiesce  with- 
out a  struggle  in  a  decree  against  him.  Williams 
had  been  defeated  in  the  Court  of  Appeals  solely 
by  his  own  testimony.   If  he  was  to  succeed  on  a 

76 


TREADMILL   JUSTICE 

new  trial,  there  was  one  thing,  and  only  one 
thing,  which  he  could  do.  He  did  that  thing. 
On  the  new  trial  he  completely  changed  his  testi- 
mony as  to  all  those  matters  on  which  the  Court  of 
Appeals  had  based  its  judgment  against  him. 

It  is  unnecessary  for  the  purposes  of  this 
article  to  follow  in  detail  the  subsequent  history 
of  this  lawsuit.  Suffice  it  to  say  that,  after  eleven 
years  more  of  litigation,  the  plaintiff  actually 
succeeded,  by  thus  changing  his  testimony,  in 
getting  sixty-five  hundred  dollars  of  railroad 
money  on  the  seventh  new  trial  of  his  suit.  The 
Court  of  Appeals  acquiesced  in  1904  in  a  ver- 
dict for  that  amount,  twenty-two  years  after  the 
commencement  of  the  action  and  fourteen  since 
that  court  had  decided  that  Williams  had  no 
case  and  should  have  been  put  out  of  court. 

The  lesson  of  this  extraordinary  case  is  plain, 
and  it  is  the  importance  of  that  lesson  which  is 
the  writer's  excuse  for  so  long  a  consideration 
of  it.  A  system  of  law  which  has  not  adequate 
terminal  facilities  must  be  judged  by  its  results, 
and  one  of  them  is  the  creation  of  unnecessary 
temptations  to  perjury.  The  court  which  created 
that  temptation  in  Williams's  case  has  itself 
declared  :  — 

77 


THE  OLD  LAW  AND  THE  NEW  ORDER 

It  frequently  happens  that  cases  appear  and  reappear 
in  this  court,  after  three  or  four  trials,  where  the  plain- 
tiff on  every  trial  has  changed  his  testimony  in  order 
to  meet  the  varying  fortunes  of  the  case  upon  appeal. 

In  every  state  where  a  similar  system  pre- 
vails, —  and  there  are  many  of  them,  —  the 
Williams  case  can  be  duplicated.  For  human 
nature  is  the  same  in  one  state  as  in  another,  and 
the  temptation  to  whichWilliams  was  exposed  is 
the  temptation  of  every  litigant  in  a  law  case  in 
which  an  unnecessary  new  trial  is  ordered  by  a 
court  which  is  itself  in  a  position,  with  all  the  facts 
before  it,  to  render  a  just  and  final  judgment. 

The  disadvantages  to  justice  herself  of  the 
treadmill  system  are  equaled  only  by  those  to 
the  litigant.  A  grimly  humorous  illustration  of 
one  of  the  results  to  the  litigant  may  be  found 
in  another  New  York  lawsuit  which  reached  a 
final  chapter  recently  in  the  Court  of  Appeals. 
It  was  a  complex  case  against  an  insurance  com- 
pany on  some  policies  of  insurance,  and  each 
time  it  was  tried  it  took  from  a  week  to  two 
weeks'  attention  of  court  and  jury.  Owing  to 
reversals  and  new  trials  ordered  by  appellate 
courts,  it  had  to  be  tried  nine  times.  It  was  in 
the  courts  from  1882  to  1902.    The  plaintiff 

78 


TREADMILL  JUSTICE 

became  at  last  so  sick  and  disheartened  with  his 
interminable  lawsuit  that  he  abandoned  it,  re- 
fused to  go  to  his  lawyers  to  consult  with  them 
about  it  or  to  appear  when  the  case  was  being 
tried.  The  lawyers  had  themselves  spent  over 
forty-five  hundred  dollars  on  fighting  the  case, 
and  had  worked  on  it  for  nearly  twenty  years. 
Their  client  having  abandoned  them,  they 
settled  the  case  for  thirty  thousand  dollars,  and 
took  the  money  themselves  for  their  fees.  The 
last  chapter  of  the  litigation  was  an  unsuccessful 
attempt  by  the  receiver  in  insolvency  of  the 
plaintiff  to  make  the  lawyers  give  up  some  of 
their  fees  to  their  client's  creditors.  How  much 
the  twenty  years'  delay  in  the  lawsuit  had  to  do 
with  that  insolvency  it  is  impossible  to  say  ; 
but  such  an  outcome,  to  the  lay  mind,  seems 
hardly  satisfactory  as  a  result  of  twenty  years  of 
litigation,  of  nine  trials,  and  seventy-two  days' 
time  of  over  a  hundred  jurors. 

While  these  illustrations  have  been  taken  from 
the  New  York  courts,  this  has  been  done  merely 
for  convenience,  and  not  because  the  Mara- 
thon method,  of  the  results  of  which  they  are 
extreme  examples,  is  peculiar  to  that  state.  The 
courts  of  New  York,  through  the  learning  and 

79 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ability  of  their  judges,  have  stood  for  a  century 
at  the  very  front  of  the  American  judiciary.  The 
disregard  of  the  litigants'  right  to  stop  is  not 
confined  to  one  state  or  section,  but  it  is,  with 
few  exceptions,  a  general  and  characteristic  de- 
fect in  American  justice.  It  exists  through  the 
courts,  even  when  the  legislatures  have  pro- 
vided adequate  means  for  the  termination  of  lit- 
igation. In  Pennsylvania,  for  example,  there 
was  adopted  some  fifteen  years  ago  a  statute 
giving  its  appeal  courts  power  to  enter  such 
judgment  as  would  do  substantial  justice  with- 
out sending  the  case  back  to  the  original  court. 
One  of  the  leaders  of  the  Philadelphia  Bar 
testified,  before  the  Law's  Delay  Committee  in 
New  York,  that  during  twelve  years  in  which 
the  statute  had  then  been  in  effect,  the  Supreme 
Court  had  exercised  the  power  given  by  the 
statute  only  once. 

There  is  not  a  recent  volume  of  either  the 
intermediate  or  highest  of  the  New  York  appeal 
courts  which  does  not  contain  some  case  which 
has  been  tried  over  again  three  or  four  times  in 
the  lower  court,  through  successive  re-trials  or- 
dered by  higher  courts  on  appeals  taken.  Such 
decisions  cannot  be  duplicated  in  English  jus- 

80 


TREADMILL   JUSTICE 

tice.  There  the  endless  re-trial  of  the  same  case 
for  "error"  is  neither  required  nor  permitted. 
The  fundamental  importance,  from  practical  con- 
siderations, of  a  system  of  justice  with  "  terminal 
facilities,"  is  recognized  there,  but  not  here. 

Now,  this  difference  in  point  of  view  is  im- 
portant not  only  in  itself,  but  in  its  necessary 
consequences.  It  is  entirely  logical  that  a  judi- 
cial organization  which  does  not  consider  the 
stopping-point  of  a  lawsuit  as  at  all  important 
should  be  technical  in  procedure,  and  filled  with 
pitfalls,  delays,  and  interminable  re-trials,  and  an 
extraordinary  over-development  of  higher  courts 
and  appeal  machinery.  It  is  equally  logical  that 
a  system  which  does  consider  the  stopping-point 
of  the  lawsuit  as  practically  important  should  be 
one  in  which  technicalities  of  procedure  are  ab- 
sent, where  new  trials  are  ordered  rarely  and 
only  for  extraordinary  reasons,  and  where  the 
great  strength  of  the  system  is  expressed,  not 
only  nominally  but  actually,  in  its  trial  courts, 
the  courts  where  the  whole  dispute  is  first  heard 
and  decided. 

It  is  because  of  this  fundamental  difference  in 
point  of  view  that  we  have  developed  top-heavy 
appellate  courts,  with  unlimited  rights  of  appeal 

81 


THE  OLD  LAW  AND  THE  NEW  ORDER 

to  them  for  delay  as  well  as  for  justice.  It  is 
through  the  disregard  of  a  stopping-point  as  a 
fundamental  requisite  of  substantial  justice  that 
the  appellate  courts  develop  technical  "  error  " 
and  order  new  trials  for  trifles,  till  the  difficulties 
of  getting  justice  in  the  court  of  first  instance 
are  almost  insuperable. 

In  England  everything  is  done  which  can  be 
done  to  make  the  first  trial  a  conquest  of  sub- 
stantial justice.  In  the  court-room  the  judge  has 
free  play.  He  is  fettered  with  no  technical  rules. 
He  turns  promptly  out  of  court  cases  too  flimsy 
to  deserve  the  consideration  of  court  and  jury. 
He  expresses  his  opinion  on  the  facts  freely. 
He  is  the  keystone  of  the  judicial  arch.  He  has 
none  of  the  terrors  of  reversal  hanging  over  him 
for  any  technical  error  he  may  make,  because 
the  English  law  binding  upon  the  appeal  courts 
expressly  provides  :  — 

A  new  trial  shall  not  be  granted  on  the  ground  of 
misdirection,  or  of  the  improper  admission  or  rejection 
of  evidence,  unless  in  the  opinion  of  the  court  to  which 
the  application  is  made  some  substantial  wrong  or  mis- 
carriage has  been  thereby  occasioned  in  the  trial. 

He  is  endowed  with  such  judicial  power  because 
he  is  a  part  of  a  system  which  expects  justice  to 

82 


TREADMILL   JUSTICE 

be  rendered  at  first  hand  in  his  court,  and  which 
considers  speed  in  reaching  a  final  judgment  es- 
sential to  its  usefulness.  The  judge  who  in  the 
first  instance  sees  and  hears  the  parties  and  their 
witnesses,  who  hears  the  case  while  it  is  a  living 
thing,  is  there  considered  at  his  actual  import- 
ance. A  system  which  reduces  his  importance, 
which  fetters  him  with  rules  so  technical  as  to 
tend  to  make  him  afraid  of  his  shadow  in  his 
own  court,  which  deprives  him  of  influence  with 
his  juries,  which  forbids  him  to  dismiss  cases  too 
flimsy  for  judicial  consideration,  is  and  must  be 
a  system  which  does  not  expect  justice  to  be 
rendered  in  the  first  court,  but  in  some  appel- 
late court,  or  rather  in  some  lower  court  after 
some  appellate  court  has  decided  wherein  the 
first  lower  court  has  failed  to  meet  the  full  re- 
quirements of  the  law.  The  over-development 
of  appeal  courts  in  America  is  largely  due  to  this 
spirit. 

The  effect  of  the  over-development  and  mis- 
development  of  appellate  courts  upon  civil  jus- 
tice can  be  better  explained  perhaps  by  an  illus- 
tration. The  illustration  chosen  is  taken  from 
the  history  of  a  somewhat  famous  accident  case 
in  New  York,  which  was  tried  over  three  or  four 

83 


THE  OLD  LAW  AND  THE  NEW  ORDER 

times  by  juries,  and  was  passed  on  twice  by  the 
Appellate  Division  of  the  Supreme  Court  and 
once  by  the  Court  of  Appeals.  The  plaintiff 
was  a  widow  suing  for  the  death  of  her  son,  who 
was  killed  by  a  street-car.  She  had  a  verdict 
each  time  from  the  jury.  The  appellate  courts 
were  inclined  to  consider  the  plaintiff's  case 
weak,  and  that  the  justice  of  the  verdict  was 
doubtful.  The  first  time  the  case  was  tried,  the 
judge  thought  the  evidence  was  so  meagre  as 
to  require  a  dismissal,  and  dismissed  the  case. 
When,  on  the  appeal  taken  by  the  widow,  the 
case  first  reached  the  Court  of  Appeals,  that 
court  established  what  was  in  effect  a  new  rule 
for  all  such  cases,  and  declared  that  however 
flimsy  the  plaintiff's  testimony  was,  if  it  was 
such  that  if  it  were  uncontradicted  it  would 
justify  a  verdict,  the  case  must  go  to  the  jury, 
even  if  the  evidence  produced  by  the  defendant 
was  overwhelmingly  greater  and  showed  clearly 
that  there  was  no  justice  in  a  recovery  by  plain- 
tiff. On  the  re-trial  ordered  by  the  Court  of 
Appeals  the  plaintiff  had  a  verdict,  and  the  case 
again  went  up  on  appeal  taken  by  the  railroad. 
The  Appellate  Court  once  more  reversed  it.  The 
ruling   it  made  was  this.  The  trial  judge  had 

84 


TREADMILL   JUSTICE 

attempted  to  tell  the  jury  how  much  care  the 
little  boy  who  was  killed  was  bound  to  use  in 
crossing  the  street  where  the  cars  ran,  and  had 
said  that  he  was  bound  to  use  the  care  which  a 
boy  of  his  tender  years  would  use  in  the  same 
situation,  and  "would  deem  adequate  thereto." 
The  Appellate  Court  reversed  because  the  trial 
judge  had  used  the  words  quoted.  They  were 
held  to  be  erroneous,  and  were  assumed  so  to 
have  influenced  and  misled  the  jury  that  they 
had  brought  in  a  bad  verdict.  Now,  of  course, 
thejury  was  not  misled  at  all  by  this  ruling,  and 
a  reversal  on  this  ground  was  absurd.  The  sit- 
uation, however,  is  quite  clear.  The  Appellate 
Court,  as  a  matter  of  fact,  was  influenced  in  re- 
versing the  verdict,  not  by  the  "  error,"  but  by 
the  apparent  injustice  of  the  verdict  itself.  It 
placed  its  decision  upon  a  highly  technical  ground 
because  it  found  no  other  legal  ground  for  set- 
ting aside  the  verdict. 

But  by  this  and  a  multitude  of  similar  deci- 
sions it  has  rendered  accident  law,  which  in  view 
of  the  nature  of  these  cases  ought  to  be  fairly  sim- 
ple, a  complicated  and  highly  technical  branch 
of  legal  art,  and  has  multiplied  enormously  the 
difficulties   of  trial  judges  in    managing   these 

85 


THE  OLD  LAW  AND  THE  NEW  ORDER 

cases.  Now,  it  may  be  that  in  this  particular 
case  it  was  proper  to  prevent  the  widow  from 
recovering  the  verdict  which  had  been  awarded 
to  her.  There  was  some  benefit  to  the  defendant 
by  this  ruling,  because  the  record  shows  that  on 
the  next  trial  she  got  a  smaller  verdict,  so  that 
the  four  erroneous  words  quoted  cost  her  nine 
hundred  and  sixty  dollars  each.  The  question  in 
its  broader  aspect,  however,  is  whether  the  de- 
cision of  the  Appellate  Court  and  others  like 
it  are  worth  what  they  cost.  In  other  words, 
whether  it  is  a  good  policy  to  make  the  general 
accident  law,  for  example,  so  technical  and  dif- 
ficult and  filled  with  so  many  possibilities  of  legal 
error,  that  the  trial  judge  is  constantly  nervous 
in  trying  to  avoid  making  mistakes,  and  has  his 
mind  occupied  with  these  technical  rules  rather 
than  with  the  real  merits  of  the  case  he  is  trying. 
An  old  business  man  who  for  a  quarter  of  a 
century  has  managed,  with  distinguished  success, 
a  corporation  maintaining  many  departments, 
once  said  to  the  writer,  "  There  is  at  least  one 
demonstratedly  wrong  way  to  run  a  business 
corporation.  That  wrong  way  is  to  make  every 
department  chief  feel  that  there  is  not  a  dot  or 
cross  that  he  makes  or  a  minor  rule  that  he  lays 

86 


TREADMILL  JUSTICE 

down,  however  unimportant,  which  is  not  likely 
to  be  changed  in  the  president's  office  a  day  or 
so  later.  The  surest  way  to  spoil  a  good  depart- 
ment manager  is  to  make  him  think  that  the 
actual  management  of  his  department,  not  in 
general  outlines  only  but  in  detail  as  well,  is  to 
be  done  in  the  president's  office  and  not  in  his 
own."  There  is  more  efficiency  lost  to  a  big 
business  by  a  top-heavy  president's  office,  than 
in  any  other  way.  It  can  hardly  be  doubted  that 
a  top-heavy  judicial  system  loses  its  efficiency  in 
the  same  way.  If  the  judge  who  presides  at  the 
trial  of  a  case,  who  listens  to  the  witnesses  as  the 
attorneys  question  them,  is  made  to  feel  that 
the  detail  of  his  work,  as  well  as  its  general  prin- 
ciples, is  to  be  reexamined  and  revised  some- 
where else,  the  judge,  like  the  business  manager, 
loses  not  only  a  certain  freedom  necessary  for 
his  full  efficiency,  but  a  proper  sense  of  responsi- 
bility as  well.  Technical  decisions  which  multi- 
ply the  uncertainty  and  delays  of  the  law  are 
the  last  thing  that  people  want.  Delays,  uncer- 
tainties, new  trials,  and  the  absence  of  terminal 
facilities,  are  not  aids  to  justice,  but  unwhole- 
some substitutes  for  it. 

There  is  a  well-known  historical  objection  to 
87 


THE  OLD  LAW  AND  THE  NEW  ORDER 

this  method  of  trying  to  avoid  injustice  by  mul- 
tiplying technicalities.  The  technicalities  of  crim- 
inal law  which  mightily  disgust  the  people  to-day, 
and  result  so  often  in  the  escape  of  offenders 
justly  convicted,  had  their  historical  origin  in 
the  efforts  of  English  judges  a  century  and  more 
ago  to  avoid  rendering  judgments  of  death  and 
outlawry  for  minor  offenses,  —  sentences  which 
a  barbarous  criminal  law  then  required  the  judges 
to  render.  To  avoid  one  evil  they  industriously 
created  another.  Because  the  criminal  law  was 
barbarous,  they  made  it  almost  ludicrously  tech- 
nical. We  inherited  the  technicalities  and  made 
them  part  of  our  more  humane  criminal  law,  and 
it  is  an  inheritance  which  has  been,  and  to  a 
large  extent  continues  to  be,  a  stumbling-block 
to  justice  and  a  shield  for  guilt.  The  develop- 
ment of  technical  law  as  a  means  of  avoiding 
possible  injustice  in  individual  cases  is  a  demon- 
strated failure. 

One  of  the  most  serious  results  of  a  meddle- 
some over-control  of  trial  judges  by  appellate 
courts,  and  their  system  of  deferring  final  judg- 
ment by  interminable  re-trials  directed  over  and 
over  again  on  technical  grounds,  is  the  breaking 
down  of  the  jury  system.  The  number  of  cases 


TREADMILL   JUSTICE 

increases  perceptibly  in  which  the  judges  of  ap- 
pellate courts  set  aside  verdicts  and  order  new 
trials,  because  they  are  convinced  that  the  juries 
have  brought  in  unjust  verdicts.  The  theory  of 
our  law  has  always  been  that  the  jury  is  to  pass 
upon  disputed  questions  of  fact,  deciding  which 
of  the  opposing  witnesses  is  to  be  believed,  but 
that  the  courts  have  the  right  to  set  aside  ver- 
dicts when  they  are  so  contrary  to  the  clear 
weight  of  the  evidence  as  to  show  bias,  prejudice, 
or  passion,  on  the  part  of  the  jury.  Why  are 
the  courts  interfering  so  much  more  frequently 
than  they  formerly  did  with  jury  verdicts?  Are 
the  jurors  of  a  lower  order  of  intelligence  than 
they  were  seventy-five  years  ago  ?  Is  the  mod- 
ern juror  less  just,  more  prone  to  passion  and 
prejudice,  and  less  open  to  reason  ?  Any  such 
deterioration  in  the  quality  of  a  juror  will  hardly 
be  claimed. 

There  is  another  explanation  which  deserves 
more  consideration  than  it  has  received.  It  is 
that  the  appellate  courts  are  tacitly  confessing 
that  their  method  of  managing  trial  judges  is, 
in  an  increasing  number  of  cases,  working  sub- 
stantial injustice.  It  is  an  example  of  the  effect 
of  the  lack  of  terminal  facilities  of  our  law  upon 

89 


:the  old  law  and  the  new  order 

the  quality  of  the  law.  Under  a  system  in  which 
new  trials  are  granted  by  appellate  courts  for 
trifling  technical  reasons,  the  conscientious  judge 
at  the  jury  trial  must  be  doubly  anxious  to  avoid 
these  possible  "errors  "  which  will  result  in  the 
miscarriage  of  justice  by  a  new  trial  granted  in  an 
upper  court.  A  trial  judge  whose  mind  is  fo- 
cused on  the  avoidance  of  legal  "  error,"  whose 
charge  is  a  desperate  effort  for  correctness  rather 
than  clearness,  is  bound  to  lose  his  influence 
with  the  jury  in  handling  the  broad  lines  of  the 
case.  Charging  a  jury  used  to  be  considered  a 
fine  art,  one  requiring  the  highest  type  of  judi- 
cial mind  in  marshaling  the  facts  of  a  complicated 
case  so  as  to  make  clear  the  bearings  of  the  law 
upon  them,  to  show  the  jurors  the  issues,  the 
point  which  it  is  their  province  to  decide.  The 
average  juror  respects  the  judge,  is  sensitive  to 
his  opinion,  is  anxious  to  follow  his  rulings  and 
to  do  justice  according  to  law,  provided,  and  al- 
ways provided,  he  can  understand  what  the  judge 
is  talking  about.  When  the  charge  to  which  the 
jury  listens  is  one  third  vague  platitudes  and 
two  thirds  undigested  extracts  from  the  opinions 
of  the  appellate  courts  laboriously  collated  by 
the  opposing  lawyers  and  charged  by  request, 

90 


TREADMILL   JUSTICE 

couched  in  legal  phraseology  which  a  lawyer 
would  have  to  read  twice  to  understand,  and 
which  a  jury  is  supposed  to  understand  by  in- 
tuition, the  authority  of  the  trial  judge  over  the 
bewildered  jury  is  gone,  and  the  verdict  which 
some  appellate  court  reverses  later  is  a  reflection 
upon  that  court,  a  commentary  on  the  results 
of  its  own  methods  far  more  than  upon  the  jury 
system. 

The  weak  spot  in  the  American  judicial  sys- 
tem is  in  the  so-called  lower  courts.  This  is  true 
because  the  public  has  an  exaggerated  opinion 
of  the  importance  of  those  tribunals  where  the 
judges  sit  in  robes  and  austere  dignity,  and  up- 
hold the  constitution,  and  write  long  and  learned 
opinions  which  are  printed  in  law  books  and 
sometimes  published  in  newspapers.  It  is  the 
weak  spot  because,  through  an  indifference  gen- 
erated by  this  mistaken  opinion,  the  public  so 
often  permits  the  election  to  the  lower  ranks  of 
the  judiciary  of  political  henchmen  and  semi- 
incompetents,  in  the  complacent  belief,  shared 
by  many  lawyers,  that  all  will  be  well  so  long 
as  these  dignified  upper  courts  remain  to  right, 
at  least  temporarily,  the  wrongs  of  the  man  with 
a  purse  long  enough  to  get  there.   It  is  the  weak 

9* 


THE  OLD  LAW  AND  THE  NEW  ORDER 

spot  because  the  appellate  courts,  in  a  meddle- 
some over-development  of  their  own  functions, 
tend  to  hamper  and  confuse  the  trial  judge  in 
his  work  by  multiplying  technical  trifles  to 
govern  his  conduct. 

The  undue  subordination  of  the  trial  judge 
lies  at  the  basis  of  the  interminableness  of  liti- 
gation. The  complaint  is  made  often  that  com- 
mercial litigation  has  largely  disappeared  from 
our  courts.  Why  should  there  beany?  If  sim- 
ple accident  cases,  through  technical  slips  and 
procedure,  can  be  ordered  re-tried  three  or  four 
times,  what  chance  have  complicated  commer- 
cial causes,  involving  difficult  questions  of  law 
or  fact,  of  reaching  final  termination  with  any- 
thing like  promptness  ?  Commercial  litigation 
will  not  return  to  the  courts  solely  by  shorten- 
ing the  delay  in  getting  to  trial.  The  business 
man  wants  to  know  when  he  is  likely  to  get  out 
of  court,  and  lacking  any  reasonable  assurances 
on  that  score  will  settle  his  grievances  or  charge 
them  up  to  profit  and  loss. 

Interminableness  is  the  great  defect  of  civil 
justice  in  America.  It  is  a  defect  which  must 
be  removed  if  the  courts  are  to  perform  their 
proper  functions.  Justice  at  first  hand  is  what 

92 


TREADMILL   JUSTICE 

the  honest  litigant  wants.  It  is  the  only  kind 
many  suitors  can  afford.  The  causes  which  make 
our  first-hand  justice  uncertain  or  ineffectual 
must  be  removed.  The  right  of  appeal  must 
cease  to  be  the  means  of  denying  and  delaying 
justice.  Complicated  and  inflexible  codes  of  pro- 
cedure must  be  made  simple.  The  old  Latin 
maxim  which  Blackstone  knew,  and  which  mod- 
ern American  law  has  forgotten,  must  be  again 
recognized  and  its  validity  restored :  Interest  rei 
public*  ut  sit  finis  litium.  (It  is  to  the  advantage 
of  the  state  that  there  should  be  an  end  to  lit- 
igation.)1 

1  Since  this  paper  was  first  published  a  great  change  has  been 
made  in  the  status  of  treadmill  justice  in  New  York,  by  amend- 
ments to  the  Code  of  Civil  Procedure  made  in  1912,  prepared 
and  advocated  by  the  Bar  Association  of  the  City  of  New  York, 
and  among  the  many  recent  praiseworthy  accomplishments  of 
its  Committee  on  Law  Reform.  The  effect  of  these  amend- 
ments, as  stated,  by  Judge  Laughlin  in  a  recent  decision  of  the 
Appellate  Division  of  the  Supreme  Court  (Bonnette  v.  Molloy, 
November,  1912),  is  this:  "The  Appellate  Division  has  now 
been  vested  with  authority  to  grant  the  final  judgment  which,  in 
its  opinion,  should  ka<ve  been  granted  by  the  trial  court,  not  only 
in  all  equity  cases,  but  in  all  actions  tried  before  the  court  with- 
out a  jury,  and  in  jury  causes  as  well,  where  the  evidence  was 
insufficient  to  require  the  submission  of  the  case  to  the  jury." 
The  immense  value  of  this  change  in  the  law  is  apparent.  In 
classes  of  litigation  which  include  not  only  a  multitude  of  flimsy 
speculative  damage  suits  but  those  cases  which  involve  the  most 
difficult  questions  of  law  and  the  largest  money  interests,  there  is 
at  last  a  definite  and  readily  attainable  stopping-point. 


IV 

The  State  as  Employer 


IV 

The  State  as  Employer 

The  question  of  what  should  be  the  relation 
of  the  State  as  employer  to  its  employees  is  not 
merely  an  abstract  question  of  law,  but  is  much 
more  one  of  applied  ethics.  With  the  enlarged 
conceptions  of  the  functions  of  the  State  now 
steadily  developing,  and  with  the  enormous  ex- 
penditures which  are  being  made  annually  upon 
so-called  public  works  involving  the  direct  or 
indirect  employment  of  thousands  of  workmen, 
the  determination  of  this  question  of  ethics  be- 
comes more  urgent  and  important.  Shall  the 
State  recognize  as  its  duty  that  obligation  which 
every  high-minded  employer  recognizes  of  treat- 
ing employees  fairly,  paying  them  a  proper  wage, 
and  requiring  from  them  only  reasonable  hours 
of  service,  or  shall  it  repudiate  all  moral  obliga- 
tion, and  upon  a  basis  of  commercialism  consent 
that  the  longest  hours  and  the  lowest  wage  shall 
be  imposed  which  the  market  of  men  affords  ? 
We  see  these  two  questions  daily  asked  and  an- 

97 


THE  OLD  LAW  AND  THE  NEW  ORDER 

swered  by  employers  in  the  business  world,  the 
closest  parallel  to  the  State  as  employer  being 
those  private  corporations  whose  officers  must 
decide  whether,  in  justice  to  their  stockholders, 
they  owe  any  moral  obligation  to  pay  employees 
more  than  the  lowest  market  rate,  or  whether 
the  stockholders  are  not  entitled  as  dividends  to 
the  sums  wrung  by  the  stern  law  of  supply  and 
demand  from  the  necessities  of  the  men  who 
earn  them. 

New  York  decided  some  years  ago  the  position 
which  its  citizens  thought  the  State  should  take 
as  an  employer  of  labor.  The  legislature,  repre- 
senting the  people,  decided  that  the  State  should 
not  only  itself  pay  fair  wages  for  fair  hours,  but 
should  insist  that  its  work  done  by  its  contractors 
should  be  performed  on  similar  terms.  A  statute 
was  enacted  in  1897  expressing  that  principle,one 
provision  of  which  was  that  eight  hours  should 
constitute  a  legal  day's  work  for  all  employees 
on  public  work,  and  another,  that  the  wages  to 
be  paid  upon  public  work  should  not  be  less  than 
the  prevailing  rate  for  a  day's  work  in  the  same 
trade  in  the  locality  where  such  public  work  is 
performed.  The  law  required  each  contract  for 
public  work  to  contain  a  stipulation  to  the  effect 

98 


THE   STATE   AS   EMPLOYER 

that  each  workman  employed  by  the  contractor 
or  subcontractor  should  be  employed  such  hours 
and  receive  such  wages.  This  statute  decided  in 
effect  that  the  State  had  an  interest  in  the  way 
employees  were  paid,  who  built  its  public  works, 
and  the  length  of  hours  in  which  they  labored; 
that  in  the  same  way  in  which  a  citizen  might  re- 
fuse to  wear  garments  made  under  sweat-shop 
conditions,  the  State  itself  might  refuse  to  have 
its  public  works  done  by  contractors  utilizing  the 
padrone  system  and  refusing  to  pay  their  work- 
men what  justice  requires. 

The  entire  moral  principle  underlying  this 
legislation  was,  however,  repudiated,  so  far  as 
contractors  on  public  work  are  concerned,  by  two 
decisions  of  New  York's  highest  court  and  the 
right  of  the  State  itself  to  regulate  the  wage  terms 
of  contractors  with  it  denied. 

The  first  portion  of  this  statute  to  be  attacked 
was  the  one  relating  towages.  A  contractor  hav- 
ing obtained  a  contract  in  which  he  agreed  to 
these  wage  conditions  required  by  the  State,  and 
having  undoubtedly  obtained  a  larger  contract 
price  than  hewould  have  obtained  if  this  provi- 
sion had  not  been  part  of  the  bargain,  deliberately 
violated  his  contract,  and  the  Comptroller  of 

99 


THE  OLD  LAW  AND  THE  NEW  ORDER 

New  York  City  having  refused,  on  account  of  this 
violation,  to  pay  him  the  balance  claimedupon  the 
contract,  he  brought  action  to  compel  such  pay- 
ment, claiming  that  the  so-called  Prevailing  Rate 
of  Wages  Law  was  unconstitutional,  and  that  he 
was  not  bound  to  comply  with  his  contract  so  far 
as  it  provided  for  the  wage  payment  of  his  em- 
ployees. The  highest  court  in  New  York,  by  a 
divided  court,  sustained  his  contention.  It  held 
this  Prevailing  Rate  of  Wages  Law  to  be  in  viola- 
tion of  the  State  constitution,  "because  it  permits 
and  requires  the  expenditure  of  the  money  of  the 
city  or  that  of  the  local  property  owner  for  other 
than  city  purposes,"  the  reasoning  of  the  court 
on  this  proposition  being  in  effect  that  anything 
above  the  lowest  market  rate  is  in  effect  a  gra- 
tuity. A  further  ground  for  holding  the  wage 
law  invalid  was  found  in  the  fact  that  it  prevented 
the  city  and  the  contractor  from  agreeing  with 
their  employees  upon  the  measure  of  their  com- 
pensation. 

This  decision  (People  ex  rel.  Rogers  v. 
Coler,  1 66  N.  Y.)  in  effect  held  that  the  right 
to  obtain  labor  at  the  lowest  possible  rate  is  an 
inalienable  right  and  duty  of  the  State  and  its 
cities,  and   that   legislation    which   requires  on 

ioo 


THE   STATE   AS   EMPLOYER 

public  work  the  payment  by  contractors  of  a 
prevailing  or  ordinary  rate  of  wages  (not,  it  is 
to  be  observed,  more  than  the  usual  wages  cur- 
rent among  workmen  of  a  given  class)  is  beyond 
the  power  of  the  legislature.  The  Chief  Justice 
of  the  Court,  Judge  Parker,  dissented  from  the 
prevailing  judgment  of  the  Court,  and  said  :  — 

The  legislature,  which  is  vested  with  the  power  to 
direct  the  conduct  of  the  business  operations  of  the 
State  by  this  statute,  has  not  only  declared  it  to  be 
the  policy  of  the  State,  as  a  proprietor,  to  pay  the  pre- 
vailing rate  of  wages,  but  has  enjoined  upon  its  sev- 
eral agents  and  agencies  the  duty  of  executing  this 
policy.  An  attack  upon  this  statute,  therefore,  assails 
the  right  of  the  State,  as  a  proprietor,  to  pay  such 
wages  as  it  chooses  to  those  who  either  work  for  it 
directly  or  upon  any  work  of  construction  upon  which 
it  may  be  engaged. 

The  decision  of  the  majority  of  the  Court,  he 
described  as  a  "judicial  encroachment  upon  leg- 
islative prerogative."  He  says  upon  the  question 
of  public  ethics  involved  in  this  case:  — 

It  would  seem  to  follow  that  the  position  taken  by 
the  State  in  enacting  this  statute  was  precisely  like 
that  of  an  individual  who  for  any  reason  determines 
that  if  it  would  be  a  little  more  honest,  as  that  term 
is  usually  applied,  it  is  not  more  than  just  to  pay  for 
a  thing  what  it  is  fairly  worth,  and  that  the  principle 

IOI 


THE  OLD  LAW  AND  THE  NEW  ORDER 

should  be  applied  as  well  to  the  compensation  of  labor 
as  to  the  payment  for  material. 

The  balance  of  the  statute,  the  portion  of  it 
which  prescribes  the  hours  of  work  and  prohi- 
bits a  contractor  with  a  State  or  a  city  from  re- 
quiring more  than  eight  hours  a  day  for  labor 
on  public  work,  was  shortly  afterwards  (Peo- 
ple v.  Orange  County  Construction  Company, 
175  N.  Y.  84)  also  held  by  the  highest  New 
York  court  to  be  unconstitutional  as  violating 
the  Constitution  of  the  United  States. 

This  construction  company  had  been  indicted 
for  requiring  more  than  eight  hours'  work 
from  its  employees  in  the  performance  by  it  of 
a  contract  for  the  improvement  of  a  public  high- 
way, a  violation  of  this  provision  of  the  labor 
law  being  a  misdemeanor.  The  Court  held  that 
this  statute,  prohibiting  a  contractor  with  the 
State  or  a  municipal  corporation  from  requiring 
more  than  eight  hours'  work  for  a  day's  labor, 
had  no  relation  to  the  public  health,  morals,  or 
order,  and  cannot  be  upheld  as  a  valid  and  con- 
stitutional exercise  of  the  police  power  vested 
in  the  legislature  ;  and  as  it  applied  only  to  con- 
tracts with  the  State  or  municipality,  it  created 
an  arbitrary  distinction  between  persons  con- 
102 


THE   STATE   AS   EMPLOYER 

tracting  with  the  State  or  a  municipality  and 
other  employers  of  labor,  thus  violating  the  pro- 
vision of  the  Federal  Constitution  forbidding 
any  State  to  "  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  its  laws." 

Under  these  two  decisions  the  entire  policy 
of  the  people  of  New  York,  as  indicated  in  this 
statute,  was  apparently  nullified.  The  Court  of 
Appeals  practically  held  that  on  the  highly  im- 
portant question  of  the  business  morals  of  the 
State  itself  the  people  were  precluded  from 
reaching  a  determination  which  they  thought 
was  just. 

These  cases  illustrate  a  phase  of  the  conflict 
between  the  legislatures  and  the  courts  over  the 
power  of  the  law  to  affect  the  wage  scale.  This 
assertion  of  the  power  of  the  State  as  employer 
to  do  justice  and  to  deal  fairly  with  its  own 
workmen,  or  to  insist  upon  fair  dealing  between 
the  contractors  and  their  own  employees  when 
engaged  upon  public  work,  is  a  declaration  of 
legislative  authority  on  the  subject  in  its  most 
defensible  form. 

The  apparent  solicitude  of  the  courts  to  main- 
tain the  constitutional  right  of  the  industrially 
helpless  to  remain  helpless,  by  preserving  to  em- 
103 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ployees  engaged  not  in  public  but  in  private  em- 
ployment their  liberty  and  freedom  of  contract, 
has  been  illustrated  time  and  again.  Kansas,  for 
example,  by  her  highest  court,  indignantly  de- 
clared that  a  law  requiring  wages  to  be  paid  in 
cash  "  places  the  laborer  under  guardianship, 
classifying  him  in  respect  to  freedom  of  contract 
together  with  the  idiot,  the  lunatic,  or  a  felon 
in  a  penitentiary.  It  is  an  encroachment  on  his 
constitutional  rights  and  an  obstruction  to  his 
pursuit  of  happiness."  Pennsylvania  has  de- 
clared a  law,  requiring  the  wages  of  labor  in 
steel  mills  to  be  paid  at  regular  intervals  and  in 
lawful  money,  to  be  unconstitutional  as  prevent- 
ing people  from  making  their  own  contracts. 
In  broad  terms  its  highest  court  has  declared 
that  "  the  laborer  may  sell  his  labor  for  what 
he  thinks  best,  whether  in  money  or  goods,  just 
as  his  employer  may  sell  his  iron  or  coal,  and 
any  and  every  law  which  proposes  to  prevent 
him  from  doing  so,  is  an  infringement  of  his  con- 
stitutional privileges,  and  consequently  vicious 
and  void."  Missouri  has  held  that  a  law  pro- 
hibiting mining  and  manufacturing  companies 
from  issuing  store  orders  on  the  company's 
stores  or  otherwise  than  in  lawful  money,  unless 
104 


THE   STATE   AS   EMPLOYER 

the  order  is  otherwise  redeemable  without  dis- 
count in  cash,  is  void  as  depriving  the  employee 
of  his  liberty  without  due  process  of  law.  In 
these  decisions  the  highest  courts  of  Mississippi, 
Texas,  California,  and  Illinois  are  in  accord.1 

1  An  interesting  side  light  upon  the  practical  effect  of  these 
decisions  is  given  by  a  writer  in  a  recent  number  of  the  Atlantic 
("  The  Esthetic  Value  of  Efficiency,"  by  Ethel  Puffer  Howes, 
Atlantic  Monthly,  July,  1912).  In  these  several  States  the  leg- 
islatures, recognizing  the  condition  of  industrial  bondage  from 
which  certain  classes  of  their  citizens  were  suffering,  sought  to 
terminate  that  bondage  by  appropriate  laws,  which  the  courts 
had,  however,  held  void  as  interferences  with  the  theoretical  and 
abstract  liberty  of  those  whose  actual  liberty  the  legislatures  had 
sought  to  restore.  In  the  article  referred  to,  the  writer  describes 
the  conduct  of  a  very  large  lumber  company  operating  in  one  of 
these  States  (Mississippi),  whose  broad-minded  operators  had 
chosen  to  do  'voluntarily  what  its  competitors  could  not  be 
obliged  to  do,  in  the  fair  and  decent  treatment  of  the  "lumber- 
jacks."  She  says : — 

'*  The  real  great  secret  of  the  recklessness  and  irresponsibility  of 
the  lumber  crew  was  their  financial  bondage.  In  all  lumber-camps 
and  sawmill  towns  the  men  were  compelled  to  trade  at  the  com- 
pany store,  and  were  paid  only  by  being  allowed  to  draw  their 
balance  over  this  store  account  once  a  month.  And  as  in  the  towns, 
the  prices  at  the  commissary  or  company  store  were  highly  ex- 
orbitant, and  the  workmen  were  always  tempted  to  run  up  large 
accounts.  In  fact,  practically  all  the  lumber  companies  that  made 
any  profit  at  all,  made  it  out  of  their  stores,  —  'operating  on  a  com- 
missary basis/  as  it  is  called,  —  with  results  to  the  workmen  that 
may  be  imagined.  To  change  this  custom  was  by  other  lumber- 
men looked  on  as  suicidal. 

"But  theVateria  Company  began  at  once  the  payment  of  its 
workmen  once  a  week  in  cash.  It  is  hard  to  make  clear  the  mir- 
acle that  this  one  simple  fact  works,  and  has  worked  here,  in  the 
105 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Massachusetts  is  now  experimenting  with  a 
minimum  wage  law,  which  it  has  adopted  after 
a  prolonged  study  of  the  economic  conditions 
of  the  working-people,  and  more  particularly" 
after  the  disclosures  made  by  the  recent  strike 
in  Lawrence.  Those  to  whom  this  attempt  at 
legislation  seems  weak,  tentative,  and  certain  to 
be  ineffective  must  consider  the  character  and 
extent  of  judicial  hostility  with  which  this  law  is 
handicapped  in  advance,  a  hostility  which  is  as 
yet  a  stumbling-block  in  the  way  of  industrial 
legislation,  such  as  is  ancient  history  in  all  other 
highly  organized  nations  of  the  world. 

conduct  of  a  man's  life,  and  in  his  moral  attitude.  It  might  be  said 
that  this  is  a  commonplace  business  method,  a  matter  of  course. 
Unfortunately  it  was,  and  is,  so  little  a  matter  of  course  in  the 
South  that  the  country's  whole  economic  condition  would  have 
been  changed,  if  fifteen  years  ago  the  credit  system  could  have 
been  swept  away  everywhere  and  cash  payments  inaugurated.  A 
large  number  of  immigrants  brought  with  great  hopes  to  South 
Carolina  in  1906,  left  there  within  a  year  largely  because  they 
were  not  paid  in  cash  and  had  to  trade  at  the  company  store.  And 
to-day,  still,  the  camp,  mine,  and  plantation  hands,  the  tenant 
farmers  and  the  small  freehold  farmers,  are  nearly  all  fast-bound, 
each  under  the  special  conditions  of  his  calling,  in  this  cruel  system 
of  indefinite  credits  and  inordinate  payments." 

Yet  these  decisions  declare  that  the  doing  of  this  simple  "  mir- 
acle" is  beyond  the  power  of  the  legislature  and  that  to  restore 
to  these  humble  workers  what  the  writer  justly  declares  as  "the 
first  condition  of  self-controlled  living"  is  to  deprive  them  of  "lib- 
erty of  contract"  or  their  employers  of  the  "equal  protection  " 
of  the  law. 

106 


THE   STATE   AS   EMPLOYER 

As  to  many  of  these  so-called  interferences  by 
legislation  under  which  the  wage  scale  or  the 
methods  of  its  payment  are  attempted  to  be  reg- 
ulated by  law,  there  is  doubtless  room  for  honest 
difference  of  opinion  as  to  the  practical  wisdom 
and  policy  of  a  rule  proposed.  What  we  have  to 
consider  is  not  a  question  of  wisdom  or  policy, 
but  a  question  of  power.  The  New  York  courts 
and  other  courts  in  other  States  which  have  fol- 
lowed the  principle  of  its  decisions  have  in  effect 
declared  that  not  only  has  the  State  no  power  to 
interfere  with  the  wage  scales  of  private  employ- 
ment, or  the  manner  or  method  or  time  of  pay- 
ment of  wages,  but  that  it  has  no  right  to  adopt 
an  ethical  standard  for  its  own  policy  as  employer. 
The  people,  having  created  in  the  State  a  consti- 
tution, and  having  therein  provided  for  a  legisla- 
ture with  general  power  to  enact  laws  expressing 
the  will  of  the  State,  the  courts  say,  in  effect,  that 
the  legislature  is  powerless  to  express  a  policy 
of  common  fair  dealing  on  this  subject  as  to 
public  work  done  for  or  by  the  State,  unless  in 
express  set  terms  the  people  amend  that  constitu- 
tion and  provide  for  something  which  the  courts 
say  may  not  be  implied,  namely,  a  decent  ethical 
standard  of  the  State  as  employer. 
107 


THE  OLD  LAW  AND  THE  NEW  ORDER 

How  hard  is  the  process  by  which  this  standard 
is  attained  may  be  seen  by  the  subsequent  course 
of  events  in  New  York.  The  first  case  on  the 
public  wage  law  was  decided  in  1901,  the  second 
as  to  the  hours  of  labor  was  decided  in  1903. 
Shortly  after  New  York  had  declared  in  both 
phases  the  statute  to  be  unconstitutional,  the 
United  States  Supreme  Court  reached  a  contrary 
conclusion  on  a  similar  law  and  handed  down 
one  of  the  most  important  decisions  yet  rendered 
in  this  country  on  law  in  its  relation  to  labor. 
The  case  in  which  this  decision  was  rendered  arose 
out  of  a  Kansas  statute  enacted  in  189 1,  by  which 
a  rule  of  conduct  had  been  adopted  by  that  State 
practically  identical  with  that  of  New  York.  The 
statute  differs  from  the  New  York  statute  in  its 
wording,  but  is  identical  in  its  principle,  both  as 
to  the  hours  and  the  wages  to  be  paid  employees. 
This  statute  provides  for  an  eight-hour  day  for 
all  laborers  employed  by  or  on  behalf  of  the  State 
or  by  any  county  or  city,  except  in  cases  of  ex- 
traordinary emergency,  etc.  It  provides  further 
that  all  public  contracts  shall  be  deemed  to  be 
made  on  the  basis  of  eight  hours,  and  that  it  shall 
be  unlawful  for  any  corporation,  etc.,  to  require 
or  permit  any  workman  to  work  more  than  eight 
108 


THE   STATE   AS   EMPLOYER 

hours  per  calendar  day,  except  in  cases  of  extra- 
ordinary emergency,  and  that  "any  officer  of  the 
State  or  any  contractor  with  the  State  violating 
the  statute  shall  be  punishable  by  a  fine  of  not 
less  than  $50,  etc.,  or  by  imprisonment." 

In  this  case  a  contractor  named  Atkin,  who 
had  entered  into  a  contract  with  the  Mayor  of 
Kansas  City  for  the  opening  of  public  streets, 
hired  one  Reese,  a  common  laborer,  to  work  for 
him  in  laying  pavement.  Reese  was  required  to 
work  more  than  eight  hours  a  day.  Atkin,  his 
employer,  was  for  this  convicted  of  a  violation 
of  this  law, and  he  appealed  to  the  Supreme  Court 
of  the  State.  The  law  had  been  previously  con- 
sidered by  that  court  and  held  to  be  constitutional 
{In  re  Dalton,  61  Kansas,  257),  and  following 
that  decision  his  conviction  was  affirmed,  and 
he  appealed  to  the  Supreme  Court  of  the  United 
States. 

It  is  obvious  from  a  very  cursory  examination 
that  the  decision  of  the  Kansas  Court  involves 
the  same  principle  as  the  New  York  Eight-Hour 
Law  case,  cited  above  (People  v.  Orange  County 
Construction  Company),  and  reaches  a  precisely 
contrary  conclusion.  The  Supreme  Court  of  the 
United  States  held  the  Kansas  decision  to  be 
109 


THE  OLD  LAW  AND  THE  NEW  ORDER 

correct,  and  in  effect  reversed  the  New  York 
Court  of  Appeals  so  far  as  that  case  held  the 
New  York  Eight-Hour  Law  for  public  work  to 
be  a  violation  of  the  Federal  Constitution.  The 
Supreme  Court  does  not  even  indulge  in  a  doubt 
as  to  the  constitutionality  of  this  Kansas  statute. 
"Indeed,  its  constitutionality  is,"  it  declares, 
"  beyond  all  question."  On  the  principle  of  the 
right  of  the  State  to  act  as  a  model  employer 
unaffected  by  constitutional  limitations,  the 
Supreme  Court  says:  — 

Whatever  may  have  been  the  motives  controlling  the 
enactment  of  the  statute  in  question,  we  can  imagine  no 
possible  ground  to  dispute  the  power  of  the  State  to  de- 
clare that  no  one  undertaking  work  for  it  or  for  one  of 
its  municipal  agencies  should  permit  or  require  an  em- 
ployee to  labor  in  excess  of  eight  hours  each  day,  and 
to  inflict  punishment  upon  those  who  are  embraced  by 
such  regulations  and  yet  disregard  them.  It  cannot  be 
deemed  a  part  of  the  liberty  of  any  contractor  that  he  be  al- 
lowed to  do  public  work  in  any  mode  he  may  choose  to  adopt 
without  regard  to  the  wishes  of  the  State.  On  the  contrary, 
it  belongs  to  the  State,  as  the  guardian  and  trustee  for  its 
people,  and  having  control  of  its  affairs,  to  prescribe  the  con- 
ditions in  which  it  will  permit  public  work  to  be  done  on  its 
behalf  or  on  behalf  of  its  municipalities.  No  court  has 
authority  to  review  its  action  in  that  respect. 

This  decision  is  an  authoritative  finding  that,  so 
no 


THE   STATE   AS   EMPLOYER 

far  as  the  Constitution  of  the  United  States  is 
concerned,  the  States  have  full  power  to  pass 
statutes  providing  the  terms  and  conditions  un- 
der which  public  work  may  be  done  as  to  the 
hours  of  labor  which  shall  be  expected  of  em- 
ployees performing  such  work.  The  decision  is 
important  because  heretofore  hour  legislation 
has  been  upheld  solely  on  the  ground  of  the  in- 
terest of  the  State  in  the  public  health,  and  as  an 
appropriate  exercise  of  police  power.  The  well- 
known  Utah  Eight-Hour  Law  was  sustained 
by  the  United  States  Supreme  Court  solely  on 
this  ground. 

The  decision  of  the  Supreme  Court  is  based 
not  at  all  upon  any  police  power  of  the  State, 
but  upon  an  affirmation  of  the  State's  right  as 
employer  to  determine  what  terms  and  condi- 
tions of  labor  are  just  on  work  done  on  its  behalf, 
and  on  its  further  right  to  insist  that  those  terms 
be  carried  out  even  by  punishing  criminally  those 
who  violate  them.  The  decision  is  important 
further  because  similar  statutory  regulations  of 
the  hours  and  conditions  of  labor  exist  in  many 
States,  and  the  decision  has  been  a  powerful  ar- 
gument for  sustaining  them  before  local  courts. 
Statutes  in  principle  similar  to  the  New  York 
in 


THE  OLD  LAW  AND  THE  NEW  ORDER 

and  Kansas  statutes,  and  covering  either  State 
employment  alone  or  employment  by  the  State 
and  its  contractors,  exist,  for  example,  in  Massa- 
chusetts, Colorado,  Idaho,  Wyoming,  Utah, 
Texas,  Washington,  Porto  Rico,  Tennessee, 
West  Virginia,  and  Maryland,  and  have  been 
enacted  covering  direct  governmental  employ- 
ment only  by  the  Federal  Government. 

In  England,  since  1891,  a  resolution  of  the 
House  of  Commons,  the  so-called  Buxton 
Rule,  provides  that  in  all  Government  contracts 
it  was  the  duty  of  the  Government  "  to  make 
every  effort  to  secure  the  payment  of  the  rate 
of  wages  generally  accepted  as  current  for  the 
competent  workman  in  his  trade." 

Singularly  enough,  the  first  State  to  be  influ- 
enced by  the  Atkin  Case  was  New  York.  A 
few  months  after  the  Supreme  Court  had  ren- 
dered its  decision,  the  Court  of  Appeals,  in 
Ryan  v.  City  of  New  York,  1 77  N.  Y.  271,  by 
a  close  vote  of  four  to  three,  modified  its  pre- 
vious determination  that  the  Prevailing  Rate  of 
Wages  Law  was  unconstitutional.  It  now  up- 
holds that  law,  so  far  as  it  applies  to  the  work- 
men directly  employed  by  the  State  or  its 
cities.  The  earlier  case  had  been  one  in  which 
112 


THE   STATE   AS   EMPLOYER 

the  wages  in  question  were  those  of  em- 
ployees of  contractors.  In  this  decision  it  now 
declares  that  the  legislature  may  lawfully  pro- 
vide that  the  State  and  its  cities  shall  pay  fair 
wages  (not  less  than  the  prevailing  rate)  to  its 
own  employees,  but  if  public  work  is  done,  not 
by  direct  public  employment,  but  through 
agents  and  contractors,  the  legislature  has  no 
power  to  prescribe  what  wages  these  agents  shall 
pay  who  voluntarily  contract  to  do  public  work. 
In  other  words,  if  a  city  does  its  own  public 
work  by  direct  employment,  it  must  pay  the 
prevailing  rate  of  wages  to  its  employees.  If  it, 
however,  does  the  same  work  through  contractors, 
it  must  not  and  cannot  require  the  contractors 
to  pay  similar  wages.  By  similar  reasoning, 
some  months  later,  in  another  decision,  it  again 
found  to  be  unconstitutional  the  Hour  Law  on 
public  work  not  done  by  the  city  itself,  but  by 
its  contractors.  The  United  States  Supreme 
Court  having  held  that  the  Federal  Constitu- 
tion does  not  forbid  such  legislation  for  fair 
hours  for  employees  on  public  work,  the  New 
York  Court  was  forced  to  change  the  basis  of 
its  former  decision  against  the  Hour  Law  from 
the  Federal  Constitution  to  the  Constitution  of 
"3 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  State;  and  its  conclusion  that  the  Hour 
Law  on  public  contract  work  is  unconstitutional 
is  in  this  later  decision  founded  upon  an  ex- 
traordinary and  novel  right  which  it  says  the 
towns  and  cities  have  under  the  State  Consti- 
tution as  against  the  State  which  creates  them 
(and  which,  if  it  chooses,  can  destroy  them)  — 
the  right  to  have  their  contract  work  done  in 
the  very  cheapest  market.  The  New  York 
judges  disagree  in  their  reasoning  in  this  as  in 
most  of  the  labor-law  cases  which  they  have  de- 
cided, but  they  agree  on  at  least  one  conclu- 
sion :  "  Where  the  municipality  lets  work  by 
contract,  it  is  itself  interested  only  in  the  result 
obtained,  and  if  that  result  complies  with  the 
requirements  of  the  contract,  it  is  immaterial  to 
the  State  what  the  contractors'  employees  may 
have  been  paid  or  how  long  they  may  have 
worked."  As  expressed  in  another  of  the  opin- 
ions written  in  this  case  :  "  It  was  not  of  the 
slightest  consequence  to  the  city  whether  he 
(the  contractor)  permitted  his  workmen  to  labor 
eight  hours  or  nine,  so  long  as  he  produced 
and  delivered  the  property  that  he  agreed  to 
deliver." 

The  courts  having  thus  concluded  for  them- 
114 


THE   STATE   AS   EMPLOYER 

selves  what  the  policy  of  the  State  as  employer 
should  be  in  a  manner  contrary  to  the  decision 
of  the  legislature,  all  that  could  be  done  by 
those  who  did  not  believe  that  these  quotations 
fairly  represented  the  prevailing  sentiment  of 
the  people  was  to  procure  a  constitutional 
amendment.  This  process  took  four  years. 
Then  the  old  law  which  had  been  declared  un- 
constitutional was  promptly  reenacted  by  the 
legislature.  Another  year  elapsed  before  this 
new  law  took  effect.  Still  the  legal  status  of 
the  State  as  employer  was  not  settled.  A  con- 
tractor, after  the  reenactment  of  the  wage  law, 
willfully  disregarded  both  its  provisions  as  to 
wages  and  as  to  hours.  Upon  demanding  pay 
for  his  work,  the  Comptroller  of  New  York 
City,  as  expressly  required  by  the  statute  itself, 
refused  payment  on  the  ground  that  this  law 
had  been  violated.  The  contractor  promptly 
obtained  a  summary  order  from  the  Supreme 
Court  directing  the  Comptroller  to  pay  his  bill, 
notwithstanding  the  conceded  violation  of  the 
statute.  The  intermediate  Appeal  Court  sus- 
tained the  ruling  without  writing  an  opinion, 
which  should  show  the  reasoning  by  which 
they  justified  their  conclusion.  The  highest 
"5 


THE  OLD  LAW  AND  THE  NEW  ORDER 

court  of  the  State  reluctantly  reversed  these  de- 
cisions and  sustained  the  law,  declaring,  "We 
uphold  the  statute  simply  because  the  people 
have  so  amended  the  Constitution  as  to  permit 
such  legislation." 

This  dull  story  represents  eleven  years  of 
conflict  between  the  courts  and  the  legislature. 
It  represents  it  only  in  one  State.  Economic 
changes  do  not  always  come  so  slowly.  If  it 
requires,  in  a  great  enlightened  and  rich  com- 
monwealth, eleven  years  so  far  to  overcome 
judicial  resistance  as  to  lay  the  foundation  for 
the  very  beginning  of  a  policy  of  fair  dealing 
between  the  State  as  employer  and  those  who 
do  its  work,  the  question  arises  as  to  whether 
the  complicated  machinery  of  constitutional 
checks  and  balances  will  move  more  speedily 
in  matters  of  graver  import,  problems  more 
complicated,  where  wise  men  differ  in  judgment 
as  to  the  policy  of  the  State,  where  fore-know- 
ledge being  impossible,  experimental  legislation 
is  necessary.  These  questions  arouse  in  the 
mind  of  the  thoughtful  observer  misgivings 
which  in  a  measure  tend  to  resolve  themselves 
in  the  realization  that  there  is  in  our  country, 
as  in  all  countries,  a  principle  which  underlies, 
116 


THE  STATE   AS   EMPLOYER 

permeates,  and  ultimately  dominates  all  forms 
of  democratic  government,  the  principle  which 
the  conflict  here  described  fairly  illustrates,  that 
there  is  and  can  be  no  permanent  triumph  of 
any  abstract  theory  of  government  over  the 
soberly  formulated  will  of  the  governed;  that 
to  endure,  the  theory  must  itself  develop,  ex- 
pand, and  be  perpetually  vitalized  under  the 
test,  not  of  academic  logic  or  barren  law,  but 
the  social  and  industrial  demands  of  the  people 
whose  effectual  service  is  its  only  reason  for 
being. 


V 

American    Discontent  with 
Criminal  Law 


V 

American   Discontent  with 
Criminal  Law 

The  English  people  a  century  ago  took  into 
their  hands  as  a  public  matter  the  condition  of 
the  Court  of  Chancery  —  the  "  Court  of  Fraud 
and  Delay,"  as  Sydney  Smith  called  it.  In  the 
same  spirit  we  are  taking  up  the  conditions  of 
our  criminal  law,  studying  the  causes  of  its 
defects,  and  looking  for  remedies  which  shall 
give  it  a  much-needed  efficiency.  Some  of  these 
causes  of  the  failure  of  our  criminal  law  are  quite 
outside  the  black  letters  of  the  law-book,  and 
cannot  be  cured  by  mere  legislative  enactments 
or  by  the  decisions  of  courts. 

Of  these  causes  perhaps  the  principal  one  is 
a  certain  defect  in  the  American  temperament, 
in  its  lack  of  respect  for  law  as  law.  It  is  a  de- 
fect which  for  generations  has  afforded  aid  and 
comfort  to  persons  accused  of  crime.  It  is  a 
defect  which  prosecuting  officials  recognize  and 
fear.  It  is  an  attitude  towards  law  which  the 
newly  arrived  foreigner  quickly  learns  to  con- 

121 


THE  OLD  LAW  AND  THE  NEW  ORDER 

sider  as  part  of  our  system  of  government.  I  re- 
member hearing  it  expressed  in  broken  English 
some  years  ago  at  a  Cooper  Union  meeting. 
A  speaker  who  was  extolling  to  an  East  Side 
audience  our  system  of  free  democracy,  and 
contrasting  it  with  the  aristocracies  of  Europe, 
shouted  as  his  climax,  "In  America  everybody 
makes  the  law  for  himself."  There  is  in  this 
rude  statement  a  very  considerable  germ  of 
truth.  We  have  not  officially  recognized  it, 
and  there  are  evidences  that  a  growing  public 
sentiment  is  arising  to  abolish  it  from  the 
spirit  of  our  law.  But  it  is  still  with  us,  and 
we  are  responsible  for  it.  The  first  trial  of 
the  notorious  Thaw  Casein  New  York  furnishes 
us  with  a  comparatively  recent  but  not  extreme 
example. 

This  trial,  it  will  be  remembered,  exhibited  a 
middle-aged,  experienced,  and  highly  successful 
criminal  lawyer  defending  a  young  man  who,  if 
sane,  had  admittedly  committed  the  crime  of  mur- 
der, apparently  in  cold  blood,  by  shooting  an 
elderly  man  from  the  rear,  when  he  could  have 
had  no  opportunity  to  defend  himself  from  at- 
tack. Of  course  the  only  defense  which  the  law 
recognizes  to  that  crime  is  the  insanity  of  the  of- 
122 


DISCONTENT   WITH   CRIMINAL   LAW 

fender.  In  summing  up  the  case,  however,  this 
lawyer,  practically  ignoring  all  evidence  of  the 
insanity  of  the  prisoner,  which  for  days  had  been 
accumulating  on  the  record,  ignoring  the  only 
legal  defense  which  could  be  interposed  between 
his  crime  and  the  punishment  fixed  by  criminal 
statute,  besought  the  jury  in  a  burst  of  eloquence 
to  override  the  law  and  base  a  verdict  of  acquit- 
tal upon  what  he  described  as  "dementia  Amer- 
icana," that  is,  the  right  as  an  American  of  this 
youngman  to  commit  murder  because  three  years 
before  his  wife  had  told  him,  whether  truthfully 
or  not,  that  she  had  been  assaulted  by  the  mur- 
dered man ;  and  he  made  this  plea  notwithstand- 
ing the  fact  that  the  truth  or  falsity  of  the  wife's 
story  was  not  in  question  and  the  Court  had  re- 
fused to  permit  the  District  Attorney  to  prove 
her  story  to  be  false.  He  audaciously  likened 
this  young  man  in  the  doing  of  this  crime  to  Sir 
Galahad  and  to  the  priest  performing  at  the  altar 
the  most  sacred  religious  rite  of  the  Church. 

Now,  in  making  this  plea,  this  lawyer  was 
acting  upon  the  experience  of  many  years  of  suc- 
cessful practice  at  the  criminal  bar,  exercising  the 
judgment  of  an  expert  (in  this  case  apparently 
an  erroneous  one)  upon  the  American  temper- 
123 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ament.  He  was  showing  us  in  the  clearest  pos- 
sible form  what  his  experience  had  taught  him 
of  how  little  respect  American  juries  have  for 
the  law.  He  made  that  address,  we  may  assume, 
because  he  had  learned  that  the  chord  of  senti- 
ment, strongly  touched,  can  induce  jurors  to  dis- 
regard the  law  and  usurp  a  power  never  com- 
mitted to  them  —  the  power  to  condone  the 
offense  and  to  pardon  the  offender.  The  District 
Attorney,  on  his  part,  marred  an  otherwise  ad- 
mirable address  by  a  similar  appeal,  and,  to  off- 
set that  indulged  in  by  his  adversary,  made  a 
passionate  rhodomontade  about  the  dead  man 
crying  from  his  grave  for  a  vindication  of  char- 
acter—  a  thing  which  was  not  within  the  legal 
province  or  power  of  the  jury  to  give. 

Whether  the  disagreement  of  the  jury  on  this 
trial  was  brought  about  by  either  of  these  pleas 
is  not  the  point.  The  point  is  that  both  the 
prosecuting  official  and  the  defendant's  counsel 
should  expect,  as  a  matter  of  course,  that  the  ver- 
dict of  the  jury  was  likely  to  be  influenced  strongly 
by  matters  entirely  outside  the  evidence,  and 
having  no  just  relation  to  the  questions  which 
the  law  either  required  or  permitted  them  to 
decide. 

124 


DISCONTENT   WITH   CRIMINAL   LAW 

Coleridge  says  somewhere  that  "  the  defects 
of  great  authors  are  virtues  carried  to  an  excess." 
What  he  says  of  authors  may  be  no  less  true  of 
the  races  of  men.  The  American  temperament 
finds  a  special  weakness  in  its  attitude  towards 
law,  in  the  overgrowth  of  those  virtues  finding 
their  well-spring  in  generosity.  If  we  may  be 
permitted  to  say  kind  things  of  ourselves,  we 
are  temperamentally  warm-hearted,  quick  of 
sympathy,  ready  to  excuse  and  forgive. 

We  have  both  the  desire  and  capacity  to  put 
ourselves  in  the  other  man's  place.  In  exercis- 
ing this  virtue  we  have  in  times  past  not  infre- 
quently but  often  overlooked  other  considera- 
tions, which  should  balance  and  check  it.  An 
acute  observer  has  said  that  in  the  normal  Amer- 
ican there  is  a  streak  of  lawlessness.  He  may 
have  it  enough  in  control  to  restrain  himself  from 
any  serious  breach  of  order,  but  it  makes  him 
often  ready  to  condone  the  lawlessness  of  some 
one  else,  especially  if  the  thing  done  is  something 
which  his  heart  tells  him  he  might  have  done 
himself.  The  rights  of  society  have  at  times 
lacked  substantial  recognition,  not  only  because 
what  may  be  called  our  "  law  sense "  is  not 
strong,  but  also  because  with  us  the  education 
125 


THE  OLD  LAW  AND  THE  NEW  ORDER 

of  the  imagination  has  been  somewhat  one-sided. 
We  can  see  the  culprit  and  his  distressed  relatives, 
we  can  imagine  the  consequences  of  conviction 
to  the  accused  individual,  but  the  consequence 
of  acquittal  to  the  injured  community  has  often 
proved  beyond  our  mental  vision.  For  this  rea- 
son we  are  notoriously  lax  in  punishing  criminal 
offenses  where  the  injured  party  lacks  respecta- 
bility. The  affront  to  society  dwindles  to  a 
vanishing  point  when  the  victim  is  a  bad  man. 

Some  time  ago  I  heard  of  a  conversation  be- 
tween a  Boston  lawyer  and  a  Southern  judge 
which  gives  a  fair  illustration  of  this  point  of  view. 
The  Northerner  had  commented  rather  caus- 
tically upon  recent  acquittals  in  certain  murder 
trials  in  the  South,  and  said  finally,  "  I  don't  un- 
derstand the  process  of  reasoning  by  which  these 
verdicts  are  reached." 

"  Well,"  said  the  judge,  whimsically,  "  I  guess 
it  is  mostly  about  like  this.  When  the  jury  re- 
tires, it  considers  all  the  evidence  on  the  main 
point ;  that  is,  whether  the  dead  man  ought  to 
have  gone.  If  they  think  he  had,  they  don't  make 
much  point  about  the  technicalities  of  the  case 
and  his  going  a  little  sooner  than  perhaps  he 
might." 

126 


DISCONTENT   WITH   CRIMINAL   LAW 

In  his  essay  on  Lincoln,  James  Russell  Lowell 
says :  "  Among  the  lessons  taught  by  the  French 
Revolution,  there  is  none  sadder  or  more  strik- 
ing than  this  —  that  you  may  make  everything 
out  of  the  passions  of  men  except  a  political 
system  that  will  work.  ...  It  is  always  demor- 
alizing to  extend  the  domain  of  sentiment  to 
questions  over  which  it  has  no  legitimate  juris- 
diction." This  danger  of  over-extending  the  jur- 
isdiction of  sentiment  finds  with  us  no  more 
numerous  illustrations  than  in  the  working  of 
our  criminal  law.  But  let  us  remember  that  the 
responsibility  for  this  danger  is  only  secondarily 
with  the  courts.  The  jury  system  is  an  essential 
part  of  our  criminal  law  machinery,  and  respect 
for  law  on  the  bench  is  sounding  brass  and  tin- 
kling cymbal  unless  the  same  spirit  is  strong  in 
the  jury-box  as  well. 

To-day  perhaps  the  strongest  and  worst  influ- 
ence for  lawlessness  which  our  country  knows, 
the  primary  responsibility  for  which  does  not 
belong  to  the  courts,  is  yellow  journalism  ;  the 
journalism  which  in  everything  it  recounts  or 
describes  uses  exaggerated  sentimentality,  freely 
mixed  with  falsehood,  and  which  at  best  fur- 
nishes to  adult  readers,  nothing  better  than  dime- 
127 


THE  OLD  LAW  AND  THE  NEW  ORDER 

novel  pictures  of  daily  life;  the  journalism  whose 
very  existence  depends  upon  bringing  some  fresh 
excitement  to  startle  the  overfed  emotions  and 
arouse  the  passions  of  its  readers.  At  times  its 
responsibility  for  lynch  law  in  the  South,  for  ex- 
ample in  the  outrages  at  Atlanta  five  years  ago, 
has  been  clearly  shown.  What  it  does  in  creating 
an  atmosphere  which  influences  and  induces  the 
commission  of  crime  is  only  equaled  by  what  it 
does  after  criminal  offences  have  been  perpe- 
trated. It  surrounds  important  criminal  trials 
with  an  atmosphere  of  emotional  slush  and 
worked-up  heart  interest ;  it  prejudices  cases  in 
advance  by  circulating  broadcast  lying  rumors 
and  fake  interviews  ;  it  injects  unfounded  pre- 
judices into  the  community  from  which  the  jury 
must  be  secured,  making  the  doing  of  justice 
difficult  in  the  extreme. 

While  in  its  ordinary  activity  this  journalism 
is  simply  an  offense  against  good  taste  and  de- 
cency, in  its  relation  to  the  enforcement  of  crim- 
inal law  it  is  nothing  less  than  a  public  menace. 
It  taints  the  whole  atmosphere  in  which  justice 
is  to  be  done,  and  increases  immeasurably  the 
difficulties  of  obtaining  jurors  who  can  do  their 
duty  uninfluenced  by  preconceived  notions  with 
128 


DISCONTENT   WITH   CRIMINAL   LAW 

which  these  newspapers  have  rilled  their  minds. 
It  took  over  three  weeks  and  an  immense  ex- 
penditure of  time  and  money  to  get  a  jury  of 
twelve  acceptable,  unprejudiced  men  in  the  Thaw 
case  in  New  York.  In  Chicago,  the  trial  of  Cor- 
nelius Shea,  the  strike  leader,  in  1 906,  took  from 
September  13  to  November  29  before  the  pre- 
liminary work  of  empaneling  a  jury  was  com- 
pleted. Before  a  jury  was  finally  accepted,  more 
than  six  thousand  citizens  were  summoned  for 
examinations  as  jurors,  and  nearly  three  months 
of  the  time  of  the  court  was  consumed. 

The  Ruef  case  in  San  Francisco  took  even 
more  time  in  getting  the  jury.  Some  of  this 
waste  of  time  in  selecting  the  jurors  is  fairly  at- 
tributable, of  course,  to  defects  in  the  criminal 
law  as  a  system,  but  an  equal  portion  of  that 
criticism  belongs  to  a  public  which  reads  and 
supports  sensational  newspapers  —  and  (another 
matter  for  which  the  Courts  are  not  primarily 
responsible)  to  that  highly  respectable  part  of 
the  community  which  dodges  jury  service. 

Somehow  we  have  got  to  make  the  dodging 

of  jury  service  dishonorable  and  disgraceful.  We 

cannot  begin  too  soon.    In  some  States  it  has 

gone  to  such  an  extent  as  to  become  a  public 

129 


THE  OLD  LAW  AND  THE  NEW  ORDER 

scandal.  In  Massachusetts,  for  example,  Gov- 
ernor Guild,  in  a  message  to  the  legislature  some 
years  ago,  gave  a  very  dark  picture  of  the  pres- 
ent condition  of  the  jury  system  in  that  State. 
"  When,"  he  says,  "  the  bench  itself  in  public 
utterance  gives  evidence  as  to  the  appearance 
even  of  the  intoxicated,  the  criminal,  and  the 
insane  on  Suffolk  juries ;  when  pressure  is  no- 
toriously exerted  to  secure  places  especially  on 
these  juries  as  a  compensation  for  political  favors ; 
when  men  high  in  social  and  commercial  life 
similarly  exert  pressure  to  be  excused  from  jury 
service,  it  is  certainly  time  that  the  authorities 
designated  by  law  should  be  safeguarded  from 
such  improper  influences."  Judge  Richardson, 
of  the  Superior  Court  in  Boston,  stated  some 
time  ago,  according  to  the  Boston  "Transcript," 
that  at  a  recent  term  of  that  court  the  jury  list 
furnished  one  utter  imbecile,  one  man  in  the 
last  stages  of  delirium  tremens,  and  an  individ- 
ual who  asked  to  be  excused  from  jury  duty 
because,  having  recently  served  a  term  in  the 
House  of  Correction,  he  felt  he  could  not  act 
impartially  in  giving  a  sentence  which  would 
consign  another  to  such  durance  vile ! 

A  London  paper  recently  expressed  the  Eng- 
130 


DISCONTENT   WITH   CRIMINAL  LAW 

lish  opinion  of  our  system  of  criminal  law  as 
"  trial  by  the  amateur  judgment  of  a  democracy." 
To  a  marked  degree  this  striking  criticism  is 
undoubtedly  correct.  Speaking  broadly,  we  have 
to  a  large  extent  given  over  our  criminal  law  for 
its  enforcement  to  the  man  in  the  street.  We 
have  chosen  to  put  the  enforcement  of  that  law 
in  the  hands  of  untrained  jurors,  presided  over, 
but  not  directed  or  controlled,  by  a  judge  who 
keeps  order  and  deals  out  abstract  rules  of  law. 
We  have  deliberately  reduced  the  authority  of 
the  trial  judge  to  control  and  direct  the  pro- 
ceedings in  his  own  court  —  we  have  enlarged 
the  powers  of  the  jury  in  proportion. 

We  have  whittled  down  the  powers  of  our 
judges  greatly.  In  many  States,  especially  in  the 
South  and  West,  in  constitutions  adopted  by 
the  people  limitations  have  been  placed  upon 
the  authority  of  their  judges  over  trials  by  jury, 
taking  away  ancient  functions  which  at  common 
law  had  been  exercised  by  judges  for  centuries. 
Some  of  these  States  have  made  the  jurors 
judges  of  law  and  fact  in  criminal  cases,  and  have 
reduced  the  position  of  the  judge  to  that  of  a 
mere  adviser,  whose  opinions  they  may  disre- 
gard if  they  please.  In  other  States  the  statutes 
131 


THE  OLD  LAW  AND  THE  NEW  ORDER 

say  the  judge  shall  not  sum  up  the  evidence  or 
intimate  any  opinion  on  the  facts;  others,  that 
the  judge  shall  not  charge  the  jury  at  all,  but 
shall  simply  mark  his  approval  or  disapproval 
upon  written  propositions  of  law  by  the  lawyers, 
which  he  must  not  explain  or  modify  for  the 
instruction  of  the  jury.  There  are  American 
States  in  which  the  judge  has  to  charge  the  jury 
that  they  are  judges  of  the  law  and  are  not 
bound  by  his  instructions  or  by  the  decisions 
of  the  Supreme  Court  —  in  which  the  jury  not 
only  decides  the  crime  but  fixes  the  punishment 
as  well. 

Now,  we  say  we  do  not  believe  in  mob  law. 
We  mean  that  we  do  not  believe  in  lynching 
and  in  other  acts  of  lawless  violence.  Lynch  law, 
however,  is  only  one  form  —  the  disorderly  form 
—  of  mob  law.  There  is,  nevertheless,  another 
type  of  mob  law,  orderly  in  the  sense  that  it 
does  not  necessarily  involve  bloodshed,  which 
in  recent  years  has  grown  up  in  this  country, 
and  which  deserves  thoughtful  attention.  It  re- 
sults logically  and  inevitably  from  the  overde- 
velopment of  the  powers  of  the  jury.  When 
the  judge  is  shorn  of  his  power  so  to  direct 
proceedings  in  his  court  that  the  trial  shall  be 
132 


DISCONTENT   WITH   CRIMINAL  LAW 

one  by  law  as  well  as  by  jury,  when  the  verdict 
to  be  reached  in  criminal  cases  can  be  made  to 
depend  largely  upon  influences  brought  to  bear 
on  the  jury-furnishing  community  either  before 
or  during  the  progress  of  a  trial,  there  are  great 
inducements  offered  for  the  working-up  of  or- 
derly mob  law — trial  by  newspaper  and  trial 
by  mass-meeting,  before  the  actual  judicial  hear- 
ing of  a  criminal  case. 

The  Moyer-Haywood  case  in  Idaho  and  the 
McNamara  case  in  California  furnish  good  ex- 
amples of  both  these  forms  of  mob  law.  The 
accused  defendants  were  entitled,  of  course,  to 
a  fair  trial  before  an  impartial  tribunal,  and  to 
such  verdict  for  or  against  them  as  the  facts  ad- 
duced on  that  trial  might  justify.  Instead  of 
waiting  for  a  court  and  jury  to  pass  in  due 
course  upon  the  indictments  against  them,  we 
had  for  months  all  over  the  country  Moyer- 
Haywood  mass  meetings,  and  later,  McNamara 
meetings,  in  which  the  accused  men  were  tried 
and  found  innocent;  in  which  the  effort  to  raise 
funds  for  their  defense,  a  perfectly  proper  ob- 
ject, was  apparently  made  subordinate  to  a  desire 
to  inflame  opinion  among  the  working-people 
in  advance  of  the  trial,  and  to  make,  by  oratory, 
133 


THE  OLD  LAW  AND  THE  NEW  ORDER 

heroes  and  possible  martyrs  of  these  men  be- 
fore the  very  beginning  of  the  actual  trial  by 
law. 

The  trial  by  newspaper  of  these  cases  went 
on  in  the  same  way.  Journals  whose  constitu- 
encies are  strongly  in  favor  of  property  rights 
recorded,  during  the  Moyer-Haywood  agitation, 
all  the  real  or  alleged  outrages  perpetrated  by 
the  Western  Federation  of  Miners,  and  did  not 
hesitate  to  express  the  hope  that  an  example 
would  be  made  of  these  men  who  had  been  at 
the  head  of  that  organization,  as  though  the  or- 
ganization itself  was  on  trial.  The  labor  press 
in  return  reflects  and  reproduces  the  sentiments 
of  the  mass  meetings.  The  same  process  was 
repeated  in  the  McNamara  affair.  The  case  was 
first  tried  in  the  newspapers  and  magazines, 
the  detective  Burns  writing  for  the  prosecution 
and  Gompers  crying  fraud  and  oppression  for 
the  defense.  Long  before  the  actual  trial  be- 
gan, public  interest  was  satiated  and  jaded,  and 
was  only  to  be  revived  for  an  instant  by  the 
subsequent  collapse  of  the  defense  and  the  ad- 
mission of  guilt. 

One  of  the  great  dangers  of  this  method  of 
trying  criminal  cases  in  advance  is  that  false  state- 

134 


DISCONTENT   WITH   CRIMINAL   LAW 

ments,  oratorical  exaggerations,  and  unfounded 
rumors  often  form  a  large  part  of  the  "  evi- 
dence" in  these  trials  by  mass  meeting  and  by 
newspaper,  evidence  which  dares  not  appear  in 
court  under  oath,  which  will  not  stand  analysis 
before  an  impartial  tribunal,  and  which  crumbles 
and  goes  to  pieces  under  examination.  The  pub- 
lic which  reads  or  listens  to  these  appeals  to 
mob  law,  and  which  is  led  by  such  statements  to 
form  opinions,  and  to  expect  a  particular  verdict 
as  the  only  one  that  can  be  rendered  by  any 
fair-minded  jury  in  any  impartial  court  —  this 
public  is  not  merely  disappointed  or  surprised 
when  the  verdict  at  the  legal  trial  is  contrary  to 
the  verdict  of  the  newspaper  trial  or  the  mass- 
meeting  trial.  The  decision  of  the  court  or  the 
verdict  of  the  jury,  so  at  variance  with  what  it 
had  been  led  to  expect,  becomes  at  once  extra- 
ordinary and  unexplainable,  and  a  suspicion 
arises,  amounting  to  certainty,  that  in  the  law 
court  there  has  been  a  miscarriage  of  justice, 
that  bribery  has  corrupted  the  court  or  bought 
the  jury. 

It  is  to  be  doubted  whether  respect  for  law  is 
encouraged  or  promoted,  even  in  cases  where  the 
trial  by  law  happens  to  coincide  in  its  conclusion 
135 


THE  OLD  LAW  AND  THE  NEW  ORDER 

with  one  of  these  forms  of  trial  by  general  opin- 
ion. The  ordinary  result  in  such  instances  is  not 
a  greater  regard  for  the  wisdom  of  the  courts, 
but  rather  for  the  power  of  so-called  public  opin- 
ion. The  advocates  of  mob  law  find  in  such  cases 
impressive  evidence  of  the  force  and  effect  of 
their  own  efforts  in  having  created  a  public  sent- 
iment to  the  demands  of  which  the  legal  tribu- 
nals have  been  compelled  reluctantly  to  conform. 
Whether  it  wins  or  loses,  this  mob  law  tends  to 
diminish  respect  for  the  courts.  The  full  re- 
sponsibility for  its  existence  and  growth  we  can- 
not lay  fairly  upon  the  courts  themselves.  It  is 
largely  a  matter  of  our  own  choosing,  and  its 
development  is  in  no  small  measure  due  to  the 
changes  in  our  law  which  I  have  mentioned, 
which  have  encouraged  it  and  furnished  its  op- 
portunities—  the  changes  in  law  which  have 
taken  away  the  necessary  powers  from  the  judge 
and  which  have  negatived  the  authority  of 
trained  opinion  and  experience  over  the  processes 
of  justice  by  law. 

To  those  to  whom  these  words  seem  to  im- 
ply a  lack  of  faith  in  the  people  from  whom  the 
jurors  are  chosen,  I  can  only  say  that  I  enter- 
tain no  such  opinion.   With  an  intelligent  and 
136 


DISCONTENT   WITH   CRIMINAL   LAW 

experienced  judge  exercising  wisely  the  necessary 
powers  of  his  office,  the  jury  system  is  open  to 
as  few  objections  as  any  human  institution.  But 
we  need  the  trained  mind  of  the  judge,  and  the 
benefit  of  his  wisdom  and  experience.  With- 
out it  the  jury  system  (particularly  in  criminal 
trials)  is  often  quite  another  matter.  It  involves 
no  heretical  dissent  from  the  highly  popular 
"  trust-the-people  "  doctrine  to  suggest  that  we 
may  carry  the  referendum  ideas  too  far.  We 
can  never  hope  to  have  in  this  country  a  Demos 
more  intelligent  than  the  one  which  convicted 
Socrates. 

It  is  not  only  because  the  State  constitutions 
and  statutes  have  taken  away  his  former  powers 
that  the  trial  judge  at  times  seems  such  a  pass- 
ive figure  in  his  own  court.  An  additional  rea- 
son —  for  which,  however,  the  public  is  not 
responsible  —  is  in  the  attitude  of  the  appellate 
courts  towards  those  slight  mistakes  in  procedure 
and  insubstantial  matters  not  relating  to  merits 
which  are  bound  to  occur  in  any  protracted 
criminal  trial.  It  has  been  said  often  and  truly 
that  our  appellate  courts  are  over-technical  in 
reversing  criminal  cases  for  these  small  matters, 
where  on  the  whole  the  convicted  person  is 
137 


THE  OLD  LAW  AND  THE  NEW  ORDER 

shown  to  have  had  a  fair  trial  and  to  have  been 
found  guilty  on  sufficient  evidence. 

It  is,  of  course,  true  that  the  percentage  of 
cases  reversed  on  appeal,  compared  to  the  total 
number  of  criminal  trials  in  lower  courts,  often 
seems  very  small.  The  grievance,  however,  is 
not  so  much  in  the  number  of  men  who  escaped 
directly  by  these  technical  decisions  as  it  is  in 
the  number  who  escape  indirectly  through  the 
loopholes  they  afford,  and  in  the  burden  which 
these  hair-splitting  rules  of  law  put  upon  the 
trial  judge  in  all  the  cases  he  tries.  When  the  ap- 
pellate courts  regard  technicalities  as  though 
they  were  as  important  as  the  substantial  ques- 
tion of  guilt  or  innocence,  the  judge  who  pre- 
sides at  the  actual  trial  must  do  the  same  thing. 
With  the  fear  of  "  error  "  ever  before  his  eyes, 
he  has  to  spend  time  and  thought  on  matters 
of  small  actual  importance  at  the  expense  of  the 
main  issue.  He  is  often  literally  afraid  to  take 
affirmative  action  in  regulating  and  controlling 
proceedings  in  his  court  for  fear  of  reversal. 

At  times  substantial  delay  in  criminal  cases 

is  due  to  the  efforts  which  a  careful  judge  is 

obliged  to  make  in  trying  to  avoid  a  technical 

error.  In  the  Thaw  case,  for  example,  the  pro- 

138 


DISCONTENT   WITH   CRIMINAL   LAW 

ceedings  were  adjourned  by  the  court  at  least 
once  to  enable  counsel  to  furnish  briefs  to  the 
judge  on  the  propriety  of  the  form  of  a  single 
question ;  that  is,  simply  the  form  in  which  a 
witness  should  be  asked  what  he  knew  about 
the  insanity  of  the  defendant.  The  legal  phrase- 
ology required  in  such  questions  constitutes  a 
special  branch  of  technicality  of  the  most  hair- 
splitting type,  in  which  the  State  Court  of  Ap- 
peals had  indulged  in  years  past,  and  which 
requires  the  trial  judge  to  be  especially  careful 
lest  he  make  a  mistake  —  one  which,  if  made, 
however,  would  ordinarily  be  of  the  most  insig- 
nificant actual  importance.  This  fear  of  error 
tends  to  make  the  trial  judge  a  negative  rather 
than  a  positive  force  in  his  own  court,  even  in 
States  where  there  are  no  constitutional  or  statu- 
tory limitations  upon  his  own  powers. 

Whether  induced  by  statutory  limitations  of 
his  power  or  by  the  burden  of  technicalities 
which  his  shoulders  must  bear,  this  sapping  of 
the  ancient  power  of  the  judge  in  jury  trials  has 
been  done  at  a  very  great  expense  to  society, 
and  has  given  aid  and  comfort  to  a  multitude 
of  criminals.  Through  these  influences  very 
largely  it  has  come  about  that  "  trial  by  the  am- 
139 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ateur  judgment  of  a  democracy"  has  been  sub- 
stituted for  the  system  of  trial  by  judge  and 
jury;  and  important  criminal  cases  too  often  are 
permitted  to  degenerate  into  interminable  dram- 
atic spectacles  surcharged  with  a  riot  of  mis- 
leading oratorical  fustian,  and  with  all  the  details 
of  the  failure  of  justice  in  them  exploited  as 
a  daily  and  sometimes  hourly  melodrama  by  a 
sensational  press.  And  yet  we  wonder  why  the 
foreigner  and  the  recent  immigrant  lack  respect 
for  our  law ! 

In  these  oratorical  contests  the  interests  of 
society  suffer  a  serious  handicap.  "  The  time 
has  come,"  as  a  Court  of  Appeals  judge  in  New 
York  recently  declared,  "  when  in  a  criminal 
trial  the  defendant's  counsel  insists  that  every 
word  uttered  by  the  District  Attorney  shall  be 
taken  by  the  official  stenographer  and  made  a 
part  of  the  record,  for  the  purpose  of  catching 
some  expression  that  may  escape  his  lips,  which 
to  the  ears  of  the  Court  may  sound  inappropri- 
ate or  unfair,  and  thus  afford  us  an  opportunity 
to  swing  the  whip  and  give  him  a  lecture.  Such 
lectures  have  already  been  given  in  a  number 
of  the  opinions  written  during  recent  years  by 
the  judges  of  this  Court,  and  still  we  have  been 
140 


DISCONTENT   WITH   CRIMINAL  LAW 

careful  to  refrain  from  reproving  counsel  de- 
fending criminal  actions  for  indulging  in  similar 
expressions,  or  of  imposing  upon  them  like  re- 
strictions in  conducting  their  defense;  and  yet 
the  attempt  of  counsel  defending  to  shift  the 
trial  from  his  client  to  the  District  Attorney,  and 
thereby  create  an  impression  in  the  minds  of  the 
jurors  that  the  District  Attorney  is  unfair,  and 
that  his  client  is  being  persecuted,  has  been  too 
often  indulged  in  and  too  often  has  been  suc- 
cessful." 

The  difference  between  the  position  of  the 
trial  judge  in  the  English  courts  and  in  the  State 
courts  of  this  country  has  been  well  expressed 
by  a  Philadelphia  lawyer,  Thomas  Learning,  in 
an  interesting  paper  read  before  the  bar  associ- 
ation of  his  State  a  few  years  ago.  "  An  Amer- 
ican lawyer,"  he  says,  "  will  say,  '  I  tried  a  case 
before  Judge  So-and-So.'  An  English  barrister 
says,  *  I  conducted  a  case  which  Lord  So-and- 
So  tried.'  He  [the  English  judge]  decidedly  re- 
strains counsel,  often  examines  the  witnesses,  and 
his  influence  is  quite  openly  exerted  to  guide 
the  jury  and  cause  them  to  avoid  absurdities 
and  extremes.  Yet  the  crucial  questions  of  fact 
really  to  be  determined  —  of  which  there  are 
141 


THE  OLD  LAW  AND  THE  NEW  ORDER 

usually  only  one  or  two  —  are  left  absolutely  to 
the  jury's  unfettered  decision." 

The  delays,  the  waste  of  time  in  criminal  cases 
and  in  jury  trials  generally  in  civil  courts,  —  de- 
lays which  disgust  intelligent  men  and  often  make 
them  unwilling  to  act  as  jurors  and  to  shirk  that 
duty,  —  are  largely  due  to  the  lack  of  power  of 
thejudge  to  control  proceedings  in  his  own  court. 
In  conversation  recently  with  Justice  John  W. 
Goff,  a  New  York  judge  of  long  experience  in 
criminal  trials,  he  made  a  comparison  between  a 
famous  poisoning  case  at  which  he  presided  some 
years  ago  and  one  which  he  had  witnessed  as  a 
spectator  while  in  England.  Both  cases  were  sen- 
sational ones.  The  English  case  was  of  a  singu- 
larly interesting  character.  A  young  and  attract- 
ive woman  of  good  family,  engaged  to  a  young 
man  of  excellent  social  standing,  was  on  trial  at 
Winchester  for  murdering  her  sister  by  poison. 
The  father  of  the  young  woman  had  recently 
died,  and  though  reputed  wealthy,  had  left  a 
meagre  estate.  The  elder  sister,  fearing  lest  her 
inability  to  provide  the  expected  marriage  por- 
tion might  lose  her  the  marriage  with  the  man  to 
whom  she  was  betrothed,  conceived  the  idea  of 
insuring  her  sister's  life,  and  by  poisoning  her 
142 


DISCONTENT    WITH    CRIMINAL   LAW 

to  secure  the  needed  money.  She  consummated 
her  design,  but  her  crime  was  discovered.  She 
was  indicted  and  brought  to  trial.  The  whole 
countryside  was  interested  in  the  case,  and  the 
talk  of  it  was  on  every  tongue.  Yet  it  took  only 
three  hours  to  select  the  jury.  It  took  over  three 
weeks  in  the  American  case  to  which  the  judge 
referred.  In  the  recent  sensational  poisoning  case 
of  Dr.  Crippen  the  English  jury  to  try  this  de- 
fendant was  empanelled  in  eight  minutes! 

The  difference  in  time  required  for  the  selection 
of  these  juries  lay  in  the  fact  that  in  the  English 
trial  the  jury  was  selected  by  the  court  with  the 
assistance  of  counsel,  and  in  the  American  trial 
the  counsel  selected  the  jury  in  the  presence  of 
the  judge.  American  traditions  are  all  against  the 
judge  "  interfering  "  with  counsel  in  the  selection 
of  jurors  in  important  cases,  and  a  judge  hesi- 
tates to  take  affirmative  action  to  prevent  the 
waste  of  time  occasioned  by  interminable  ques- 
tions to  prospective  jurors  for  fear  that  his  rul- 
ing may  be  considered  as  technical  error  in  a 
higher  court,  resulting  in  a  new  trial  and  a  gen- 
eral waste  of  more  taxpayers'  money. 

It  may  seem  to  some  that  undue  emphasis  has 
been  laid  upon  the  importance  of  relieving  the 
143 


THE  OLD  LAW  AND  THE  NEW  ORDER 

judge  who  presides  at  jury  trials  from  these  statu- 
tory restraints  and  from  the  incubus  of  these 
technicalities.  In  answer  I  can  only  plead  that 
in  so  doing  I  am  but  repeating  sentiments  which 
have  been  voiced  at  professional  gatherings  and 
meetings  of  bar  associations,  by  great  judges  and 
learned  lawyers  for  twenty  years.  In  the  public 
mind,  through  our  top-heavy  system  of  appel- 
late courts  with  their  multitudinous  decisions, 
the  notion  has  gained  currency  that  the  judge 
who  stands  closest  to  the  people,who  hears  crim- 
inal cases  when  they  first  come  to  trial,  has  less 
dignity  than  his  brothers  in  the  so-called  higher 
tribunals,  and  that  the  extent  of  his  power  is  of 
minor  importance  when  compared  with  theirs. 
This  is  undoubtedly  a  serious  mistake.  The  test 
for  the  efficiency  of  the  whole  judicial  system,  as 
an  instrument  for  punishing  the  guilty  and  pro- 
tecting the  innocent,  is  in  the  power  of  his  court 
and  in  the  wisdom  and  dispatch  with  which  that 
power  is  there  exercised.  No  amount  of  wisdom 
and  learning  in  the  labyrinthine  recesses  of  the 
appellate  courts  can  create  respect  for  a  law  which 
breaks  down  through  weakness  and  uncertainty 
at  its  vital  point  of  contact  with  the  people. 
The  importance  of  the  reform  of  our  criminal 
144 


DISCONTENT   WITH   CRIMINAL  LAW 

law  is  made  startlingly  clear  by  a  consideration 
of  the  growth  of  criminality  in  our  country  alone 
of  the  great  civilized  nations. 

Recent  insurance  statistics  of  thirty  American 
cities  show  an  average  of  7.2  homicides  per 
100,000  people  in  the  period  from  1901  to  191 1, 
an  increase  of  2.3  over  the  preceding  decade. 
The  average  for  England  and  Wales  is  only  0.9 
per  hundred  thousand!  The  ratio  of  murder  to 
population  is  increasing  in  our  country.  The 
American  Prison  Association's  Committee  on 
Criminal  Procedure  declares  that  not  one  out 
of  four  murderers  in  the  United  States  is  brought 
to  trial ;  that  out  of  twenty-five  brought  to  trial 
only  one  receives  a  death  sentence.  According 
to  the  same  authority  ten  thousand  homicides 
are  committed  in  this  country  every  year  — 
more  than  the  aggregate  number  for  any  ten 
civilized  nations  exclusive  of  Russia. 

The  two  great  evils  of  our  criminal  law  to-day 
are  technicality  and  sentimentality.  For  one  of 
these  defects  the  remedy  must  come  from  the 
hands  of  the  legislatures,  the  courts,  and  the  law- 
yers. Admirable  legislation  for  that  purpose  has 
been  adopted  in  many  States  within  recent  years. 
The  other  defect  must  depend  for  its  cure  upon 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  growth  of  a  public  opinion,  under  the  de- 
mands of  which  reason,  sober  sense,  and  regard 
for  law  shall  control  all  other  influences  and 
emotions  in  the  jury-box.  Our  discontent  with 
the  criminal  law,  to  be  effective,  must  direct 
itself  to  the  removal  not  merely  of  one  of  these 
evils,  but  of  both. 


VI 

Criticizing  the  Courts 


VI 

Criticizing  the  Courts 

In  a  general  sense  the  question  of  the  right 
to  criticize  the  courts  is  no  question  at  all.  In  a 
democracy  every  institution  is  necessarily  the 
subject  of  criticism,  often  of  an  offensive  and 
painful  character;  and  to  this  general  rule  the 
courts  are  no  exception.  Indeed,  in  one  sense, 
the  courts  are  peculiarly  the  subject  of  the  crit- 
icism of  experts.  Lawyers  who  try  cases  are 
engaged  in  testing  the  judicial  capacity  of  judges. 
Lawyers  who  appeal  from  a  lower  court  to  a 
higher  court  are  engaged  in  criticizing  the  judge 
who  was  responsible  for  an  unsatisfactory  deci- 
sion. The  appeal  judges  are  paid  by  the  State  to 
act  as  critics  of  their  brethren  in  the  court  be- 
low. In  view  of  this  machinery  through  which 
the  courts  are  subjected  to  the  animadversion  of 
professional  critics,  it  would  be  a  hardy  or  a  very 
foolish  man  who  would  assert  that  criticism  of 
the  courts  should  not  be  indulged  in  by  laymen. 

But,  while  the  general  right  to  criticize  is  not 
disputed,  there  has  been  evident  in  recent  years, 
149 


THE  OLD  LAW  AND  THE  NEW  ORDER 

and  generally  in  political  campaigns,  a  somewhat 
vague  attempt  to  draw  an  imaginary  or  real  line 
between  the  types  of  criticism  which  are  permis- 
sible and  those  which  are  not  and  which  consti- 
tute what  are  called  "  Attacks  upon  the  Courts." 

If  we  were  to  attempt  such  a  classification 
of  current  criticisms  of  the  courts,  we  should 
find,  in  the  group  concerning  which  the  right  to 
criticize  is  unquestioned,  such  subjects  as  the 
breakdown  in  certain  sections  of  our  criminal 
law,  the  defects  of  over-cumbersome  procedure, 
the  imperfect  condition  of  judicial  machinery, 
and  the  time-honored  complaint  of  the  law's 
delay. 

Modern  conditions  are  the  natural  causes  for 
these  criticisms.  The  improvement  of  judicial 
machinery  is  a  matter  of  very  considerable  im- 
portance. The  amount  of  work  which  has  to  be 
done  by  the  courts  is  enormous  in  comparison 
with  what  was  required  a  half-century  ago;  and 
with  the  increase  of  litigation,  the  inevitable  re- 
sult of  our  more  complicated  form  of  society, 
the  strain  upon  the  machinery  of  the  courts  has 
increased.  We  are  applying  efficiency  tests  to 
industrial  processes  to  promote  speed,  accuracy, 
cheapening  of  cost,  conservation  of  energy,  and 
ISO 


CRITICIZING   THE   COURTS 

the  adaptation  of  means  to  the  end  sought. 
These  critics  demand  the  application  to  the 
courts  of  the  same  principle  of  scientific  man- 
agement which  to-day  bids  fair  to  revolutionize 
the  machinery  of  production.  There  is,  they  as- 
sert, the  same  need  of  economic  efficiency  in  the 
courts  as  in  business.  Their  criticisms  have  a 
double  aspect :  one  which  relates  to  defects  in 
the  machinery  of  procedure  and  practice,  and 
aims  from  a  standpoint  of  efficiency  to  reconsti- 
tute the  processes  of  justice;  and  the  other,  to 
the  substitution  of  a  new  and  more  healthful 
spirit  for  one  in  which  the  broad  ethical  demands 
of  justice  are  too  often  subordinate  to  unserv- 
iceable technicalities  and  trifles. 

On  these  subjects  we  have  now  an  aroused 
public  opinion,  guided  by  leaders  of  recognized 
standingand  authority.  A  demand  for  law-reform 
supported  by  the  leaders  of  the  American  Bar, 
and  by  the  judges  themselves,  is  nowhere  con- 
sidered as  in  any  sense  an  attack  upon  the  courts, 
as  that  much-worn  phrase  is  currently  used. 

The  subjects  which  have  been  mentioned  are 
not  controversial  ones,  since  we  are  all  inter- 
ested in  having  our  courts  improved  in  efficiency, 
and  our  criminal  law  made  sure  and  speedy. 
151 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Criticism  of  the  courts  for  defects  in  these  mat- 
ters has  never  written  a  line  in  a  party  platform 
pledging  any  political  organization  to  the  defense 
of  the  courts  against  attacks  upon  the  judiciary. 

When,  however,  we  have  passed  from  the 
consideration  of  these  matters,  upon  which  pub- 
lic opinion  is  substantially  in  accord,  to  the  con- 
sideration of  the  relation  of  the  judiciary  to  the 
public  policy  of  the  State  and  Nation,  we  have 
entered  the  field  in  which  the  existence,  or  at 
least  the  extent,  of  the  right  to  criticize  the 
courts,  is  challenged  or  denied  as  a  political 
issue. 

It  is  the  recurrence  of  an  old  subject  in  a  new 
form.  The  right  to  criticize  the  Supreme  Court 
and  to  question  the  finality  of  its  decisions  on 
political  problems,  half  a  century  ago  was  a  sub- 
ject of  debate  in  the  great  controversy  over  the 
nature  of  the  Constitution  which  later  culmin- 
ated in  our  Civil  War.  The  right  to  criticize 
the  judiciary  and  to  question  the  finality  of  de- 
cisions upon  economic,  industrial,  and  social 
problems  is  the  open  public  question  of  our  own 
time,  and  is  the  fundamental  issue  in  the  cur- 
rent discussion  of  attacks  upon  the  courts  and 
current  defenses  of  the  judiciary. 
152 


CRITICIZING   THE   COURTS 

The  question  rarely,  however,  is  expressed 
concretely  in  this  form.  Ordinarily  the  issue 
becomes  available  for  political  purposes  in  the 
highly  utilitarian  literature  of  party  platforms, 
through  the  form  or  manner  of  criticism  upon 
court  decisions,  on  grave  public  questions,  in- 
dulged in  by  prominent  public  men  in  an  opposite 
camp ;  and  the  "  defense-of-the-judiciary  "  planks, 
evoked  by  such  utterances,  deal  with  rebukes 
of  the  manner  of  these  criticisms  more  than  with 
their  substance.  The  Republican  planks  which 
defended  the  courts  against  Bryan  and  his  criti- 
cisms of  the  Income  Tax  decision,  and  the 
Democratic  planks  which  defended  the  courts 
against  Lincoln  and  his  criticism  of  the  Dred 
Scott  case,  and  more  recently  against  Roosevelt 
and  his  criticism  of  the  Bakeshop  and  Sugar 
Trust  cases,  are  alike  in  this  regard. 

There  exists  to-day,  no  doubt,  a  wholesome 
public  opinion  which  protects  our  courts  gen- 
erally from  the  vilification  and  coarse  libeling  to 
which  our  legislative  and  executive  officers  are 
constantly  exposed.  To  a  certain  extent,  party 
platforms  which  protest  against  attacks  upon  the 
courts  are  healthy  expressions  of  this  public 
opinion. 

iS3 


THE  OLD  LAW  AND  THE  NEW  ORDER 

It  is  an  encouraging  feature  of  our  democracy 
that,  at  least  in  our  attitude  toward  the  courts, 
we  have,  by  general  consent,  decided  to  be  civil. 
It  is  an  attitude  which  to-day  protects  our  courts 
from  that  criticism,  unlimited  either  as  to  form 
or  substance,  which  relentlessly  pursues  promi- 
nent members  of  coordinate  branches  of  our 
government.  It  is  a  comparatively  modern  de- 
velopment of  democracy. 

The  distinction  made  between  the  courts  and 
other  executive  and  legislative  officers  as  to  the 
form  of  criticism  applicable  to  them  did  not  ex- 
ist at  the  time  our  government  was  founded,  nor 
in  the  so-called  "  Golden  Age"  of  the  Supreme 
Court.  It  was  recognized  neither  by  the  public 
nor  by  the  great  statesmen  of  the  past.  Jeffer- 
son, for  example,  indulged  in  criticism  of  the 
Federal  Judiciary  which  would  be  intolerable 
to-day  from  any  living  public  man.  "  The  Ju- 
diciary of  the  United  States,"  he  declared,  "  is 
a  subtle  corps  of  sappers  and  miners,  constantly 
working  underground  to  undermine  the  founda- 
tions of  our  confederate  fabric."  His  followers, 
who  shared  his  bitter  animosity  against  Marshall, 
joined  with  him  in  his  repeated  attacks  upon  the 
great  Chief  Justice.  After  the  Jeffersonian  re- 
iS4 


CRITICIZING   THE   COURTS 

sistance  to  the  power  asserted  by  Marshall  in 
his  court  to  declare  laws  to  be  unconstitutional 
had  ceased  ;  after  the  disappearance  of  the  Jack- 
sonian  doctrine,  asserted  in  the  matter  of  the 
rechartering  of  the  Bank  of  the  United  States, 
that  each  branch  of  the  Government  was  a  law 
unto  itself  as  to  the  construction  of  the  Consti- 
tution, and  that  the  Executive  might  on  this 
theory  disregard  a  construction  given  to  that  in- 
strument by  the  Supreme  Court  in  holding  that 
such  a  bank  was  authorized  by  the  Constitution  ; 
after  the  disappearance  of  the  still  more  dan- 
gerous heresy,  originated  by  Jackson,  that  the 
Executive  might  refuse  to  compel  the  enforce- 
ment of  a  resisted  judgment  of  the  Supreme 
Court  if  that  judgment  happened  to  be  displeas- 
ing to  the  Executive,  —  after  these  and  other 
contests  for  power  between  the  executive,  legis- 
lative, and  judicial  branches  of  our  government 
for  the  time  being  had  been  settled,  the  modern 
doctrine  of  judicial  immunity  from  political  criti- 
cism began. 

That  immunity  John  Marshall  never  enjoyed. 

During  substantially  the  whole  of  his  judicial 

career,  while  he  was  rendering  that  long  series 

of  constitutional  decisions,  political  decisions  in 

155 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  higher  sense  of  the  word,  through  which  not 
merely  the  extension,  but  the  very  existence  of 
our  national  life  was  made  possible,  he  was  the 
object  of  partisan  criticism  of  the  bitterest  kind. 
The  old  nationalism  of  Marshall  was  an  alarm- 
ing doctrine  to  the  early  Jeffersonians.  The  de- 
velopment, through  these  decisions,  of  a  nation, 
where  Jefferson  desired  merely  a  confederation 
of  jealous  states,  required  not  merely  judicial 
decisions,  but  public  discussions  of  those  de- 
cisions and  the  final  acceptance  of  them  by  the 
people  as  wise  statesmanship,  as  well  as  sound 
interpretations  of  our  fundamental  law. 

Marshall  ceased  to  be  the  subject  of  political 
discussions  only  when  public  opinion  had  con- 
cluded that  an  American  nation,  harmonized  by 
a  great  American  court,  was  not  a  menace  to  the 
sovereign  states.  No  one  would  have  dreamed 
of  saying  at  any  time  during  the  first  twenty 
years  of  Marshall's  incumbency  in  the  Supreme 
Court  that  any  decision  of  that  court  was  to  be 
taken  as  the  final  word  on  the  relation  between 
the  states  and  the  nation;  that  is,  taken  as  the 
final  word  in  the  sense  that  the  political  prob- 
lem involved  in  it  was  not  to  be  discussed,  crit- 
icized, defended,  or  condemned. 
156 


CRITICIZING   THE   COURTS 

It  was  largely  through  the  discussion  of  the 
expansive  principles  of  Marshall's  constitutional 
nationalism  that  public  opinion  became  formed. 
Those  principles  were  tested  in  public  debates 
on  the  great  question  whether,  under  the  Con- 
stitution, there  was  or  should  be  an  Ameri- 
can nation  rather  than  a  mere  federation  of 
states.  They  were  discussed  and  were  under- 
stood—  not  in  their  narrower  sense  as  legal  de- 
cisions, but  in  their  wider  sense  as  constitutional 
political  principles — by  a  public  which  listened 
to  the  great  debates  between  Webster  and 
Calhoun. 

It  was  to  no  small  extent  because  the  great 
judicial  decisions  of  Marshall  stood  the  test  of 
these  debates,  because  the  national  principle  of 
Marshall,  expounded  by  Webster,  appealed  to 
the  people  of  the  North  as  something  not  only 
sound  but  worth  fighting  for,  that  the  war  was 
fought  and  the  nation  saved.  The  criticism  of 
the  judiciary  which  prevailed  during  most  of 
Marshall's  term  of  office  did  the  court  little 
harm,  and  did  the  nation  infinite  good ;  for  it 
was  essential,  not  only  that  the  Constitution 
should  be  construed,  but  that  the  construction 
which  made  the  federation  of  states  a  nation, 
iS7 


THE  OLD  LAW  AND  THE  NEW  ORDER 

should  be  known,  weighed,  balanced,  tested, 
and  accepted  by  the  people. 

The  notion  that  the  Constitution  is  a  sacred 
puzzle  for  lawyers,  concerning  which  the  opinion 
of  the  people  is  unimportant,  certainly  did  not 
exist  in  Marshall's  time  among  statesmen,  or 
even  among  lawyers  whose  opinions  have  es- 
caped oblivion.  The  Jeffersonian  critics  were 
met,  not  by  assuring  them  that  they  were  at- 
tacking the  courts  and  were  enemies  of  organ- 
ized society,  but  by  replying  to  their  criticisms 
in  debate,  thereby  putting  a  wholesome  public 
opinion  behind  the  Court. 

The  more  lawyer-like  attitude  toward  the 
Court  and  the  Constitution,  the  attitude  that 
the  decision  of  the  Court  on  a  constitutional 
proposition  is  not  only  final  but  undiscussible, 
and  that  public  opinion  in  opposition  to  it  is 
morally  wrong,  had  its  first  conspicuous  expres- 
sion after  Marshall's  death,  when  Chief  Justice 
Taney  tore  the  safety-valve  from  the  national 
machine,  in  the  Dred  Scott  case,  by  substantially 
declaring  that  there  was  no  way  under  the  Con- 
stitution for  the  law-making  branch  of  the  nation 
to  deal  with  the  problem  of  chattel  slavery. 

Up  to  the  death  of  Marshall,  the  criticism 
158 


CRITICIZING   THE   COURTS 

of  the  Supreme  Court  had  been  directed  merely 
against  its  extension  of  the  life  of  the  nation 
by  a  broad  construction  of  the  Constitution. 
Taney's  decision  was  a  contraction  of  the  con- 
stitutional life  of  the  nation  by  the  declaration 
of  its  powerlessness  to  act  on  a  matter  which 
peculiarly  needed  national  action.  The  friends  of 
slavery  asserted  that  the  Dred  Scott  decision 
was  not  debatable;  that  the  judgment  made  by 
that  august  tribunal  must  be  accepted  in  silence, 
and  that  the  only  lawful  and  orderly  escape  from 
its  conclusion  was  by  the  amendment  of  the 
Constitution  itself  on  the  subject  covered  by  it, 
—  a  thing  absolutely  impossible. 

In  all  ages  there  have  been  classes  of  men, 
wise  after  events  and  not  in  them,  who  "  build 
the  tombs  of  the  prophets  and  garnish  the  sepul- 
chers  of  the  righteous,  and  say  that  if  they  had 
lived  in  the  days  of  their  fathers,  they  would 
not,  like  them,  have  shed  the  blood  of  the  pro- 
phets." This  class  in  our  own  country  is  prone 
to  look  back  to  Lincoln's  attacks  upon  the  Dred 
Scott  case,  and  upon  the  Court  which  rendered 
that  decision,  and  assure  itself  that  if  it  had 
lived  in  the  same  period  it  would  have  sided 
with  him  in  his  criticism.  But  the  principle  upon 
iS9 


THE  OLD  LAW  AND  THE  NEW  ORDER 

which  Lincoln  acted  is  far  more  important  and 
vital  to-day  than  the  decision  which  he  attacked. 
We,  all  of  us,  are  able  to  see  to-day  that  when 
the  Supreme  Court  declared  that  the  nation  was 
powerless  to  remedy  by  law  the  iniquities  of  an 
industrial  system  which  required  law,  it  left  no 
alternative  for  those  who  stood  for  freedom  but 
war.  We  can  look  back  and  see  that  the  accept- 
ance of  Douglas's  position  was  impossible. 

We  are  all  able  to  see  now,  in  the  classic  con- 
flict between  a  small  man  and  a  great  man,  the 
distinction  between  a  narrowly  juristic  and  a 
statesmanlike  attitude  toward  the  courts.  What 
we  differ  about  is  the  application  to  the  social, 
industrial,  and  economic  rather  than  political 
problems  of  our  own  time  of  the  same  principle, 
which  we  admit  was  correct  when  expressed  and 
applied  by  Lincoln.  Most  of  us  are  ready  to 
say  that  Lincoln,  who  was  a  great  and  far-seeing 
statesman  and  who  is  dead,  was  right;  and  that 
Judge  Douglas,  who  is  also  dead  and  whom  sub- 
sequentevents  and  the  judgment  of  history  have 
found  to  be  neither  a  statesman  nor  a  great  man, 
was  wrong.  But  the  same  class  that  believed 
Douglas  right  when  he  was  campaigning  for  the 
political  issue  which  he  called  the  supremacy  of 
1 60 


CRITICIZING   THE   COURTS 

the  courts  are  followers  of  his  spirit  to-day  in 
the  recrudescence  of  that  issue  in  our  own  time; 
and  the  principle  which  Lincoln  maintained  has 
among  them  now  as  few  friends  as  it  had  when 
he  was  alive. 

It  would  be  a  rash  person  who  would  deny 
that  Douglas's  doctrine  is  not  substantially  that 
with  which  defenders  of  the  courts  meet  their 
critics  to-day.  Lincoln  asserted  the  right  of  the 
people  to  criticize  particular  decisions  as  em- 
bodying dangerous  doctrines,  and,  more  espe- 
cially, when  such  particular  decisions,  as  in  the 
Dred  Scott  case,  clog  the  whole  machinery  of 
government  and  leave  it  powerless  to  act  where 
action  is  essential. 

"  We  believe,"  he  declared,  "  as  much  as 
Judge  Douglas,  perhaps  more,  in  obedience  to 
and  respect  for  the  judicial  department  of  gov- 
ernment. We  think  its  decisions  on  constitu- 
tional questions  when  fully  settled  should  con- 
trol not  only  the  particular  case  decided,  but 
the  general  policy  of  the  country,  subject  to  be 
disturbed  only  by  amendments  to  the  Consti- 
tution, as  provided  in  that  instrument  itself. 
More  than  that  would  be  revolution.  But  we 
think  the  Dred  Scott  decision  is  erroneous.  We 
161 


THE  OLD  LAW  AND  THE  NEW  ORDER 

know  the  Court  that  made  it  has  often  over- 
ruled its  own  decisions,  and  we  shall  do  what 
we  can  to  have  it  overrule  this." 

Judge  Douglas  asserted  that  a  political  issue 
based  upon  the  criticism  of  this  single  decision 
involved  or  implied  an  attack  upon  the  whole 
judicial  system,  and  created,  he  declared,  "  a 
distinct  and  naked  issue  between  the  friends 
and  enemies  of  the  Constitution,  the  friends 
and  enemies  of  the  supremacy  of  the  laws." 

If  Douglas  was  wrong  and  his  doctrine  was 
unsound  at  the  time  when  it  was  enunciated,  the 
political  tendencies  of  our  day  afford  still  less 
excuse  for  its  reaffirmation.  The  problems  of 
our  day  are  essentially  different  from  those 
which  formed  the  subject  of  the  great  debates 
prior  to  the  Civil  War.  The  political  relation 
of  the  States  to  the  Nation  is  settled.  Our 
questions  are  not  political  in  the  old  sense  of 
the  word,  but  primarily  economic,  social,  and 
industrial.  They  are  problems  of  corporations 
and  labor-unions,  of  the  regulation  of  railroads 
and  industrial  trusts,  of  taxation,  of  conserva- 
tion of  natural  resources,  of  congestion  and  con- 
centration, of  natural  and  artificial  industrial 
inequality.  Back  of  all  these  problems  is  the 
162 


CRITICIZING   THE   COURTS 

fundamental  one  of  the  extent  to  which,  under 
our  constitutional  system,  they  may  be  dealt 
with  by  law  —  and  law  of  a  new  type. 

As  society  becomes  more  complex,  the  whole 
tendency  of  legislation  is  to  attempt  to  deal 
with  the  individual  as  a  member  of  the  state, 
instead  of  dealing,  as  formerly,  with  the  state 
as  a  mere  mathematical  sum  total  of  individuals, 
whose  individual  rights  as  such  must  be  pre- 
served, at  least  in  theory,  at  the  cost  of  society 
as  a  whole,  and,  far  too  often,  at  the  cost  of  the 
individual  himself. 

This  principle  is  old  and  well  established  in 
Europe,  and  consistent  with  the  necessities  of 
Continental  government.  It  is  new  with  us.  It 
is  a  decided  variation  from  American  traditions. 
It  is  at  variance  in  particular  with  the  economic 
theory  current  when  we  adopted  our  Constitu- 
tion, an  economic  theory  which,  having  been 
unconsciously  adopted,  has  tinged  the  interpre- 
tation by  our  courts  of  the  broad  generalities  of 
our  Constitution. 

A  historical  discussion  of  the  principle  of  the 

laissez-faire   doctrine   of  Quesnay   and    Adam 

Smith  would  be  out  of  place  here.  Its  merit 

from  the  standpoint  of  history  is  in  the  immense 

163 


THE  OLD  LAW  AND  THE  NEW  ORDER 

service  it  rendered  in  the  destruction  of  a  be- 
wildering network,  of  ancient,  meddlesome  in- 
terferences with  the  liberty  of  the  individual,  a 
despotism  which  was  rarely  benevolent  and  al- 
most uniformly  destructive  of  the  enterprise  and 
initiative  of  the  individual,  and  of  natural  and 
proper  opportunities  for  self-development.  No 
one  can  study  the  causes  which  led  to  the  French 
Revolution  without  seeing  that  the  overgrowth 
of  the  state  supervision  of  the  citizen,  not  for 
the  benefit  of  the  citizen,  nor  for  the  benefit  of 
the  state,  but  to  afford  luxuries  to  a  selfish,  idle, 
and  fearfully  extravagant  court,  was  one  of  the 
main  causes  for  the  termination  of  the  old  re- 
gime. 

The  cry  for  individual  freedom  from  govern- 
mental interference,  the  shibboleth  that  that 
government  is  best  which  governs  least,  was  a 
natural  reaction  from  the  bondage  of  regulations 
of  the  past.  This  principle  Europe  soon  found 
to  be  unworkable  under  Continental  conditions. 
America,  however,  tried  it  under  economic  con- 
ditions unlike  those  in  Europe,  —  in  a  new  coun- 
try with  immense  areas  of  free  land,  with  few 
cities,  where  the  opportunities  for  individual  in- 
itiative were  by  nature  apparently  unlimited,  and 
164 


CRITICIZING   THE   COURTS 

involving  for  a  long  time  in  their  exercise  no 
conflict  with  the  interests  of  society  as  a  whole. 
As  our  society  becomes  more  complex,  with 
the  enormous  growth  of  our  population,  with 
the  development  of  our  cities,  new  industrial, 
social,  and  economic  conditions  are  presenting 
problems  for  solution  of  the  greatest  difficulty. 
These  questions  in  Europe  are  legislative  ques- 
tions, pure  and  simple.  With  us  they  are  some- 
thing more.  One  of  the  most  important  ques- 
tions which  confronts  us  in  America  is  one  which 
does  not  exist  in  Europe,  and  that  is  the  exact 
relation  of  the  courts  to  American  economic 
problems.  This  is  the  main  basis  for  current 
discussions  of  the  judiciary.  The  principal  critics 
of  the  judiciary  to-day  are  those  who  are  insist- 
ing that  the  economic  and  social  questions  which 
confront  us,  in  so  far  as  they  can  be  affected  at 
all  by  any  branch  of  government,  can  be  solved 
only  by  legislative  and  executive  action,  and  re- 
quire the  greatest  flexibility  and  freedom  in  those 
branches  of  government  for  the  adaptation  of 
the  means  to  the  end  in  accomplishing  the  re- 
sult sought.  They  meet  with  criticism,  and  often 
with  harsh  criticism,  each  decision  of  the  courts 
which  in  their  judgment  unnecessarily  limits  leg- 
165 


THE  OLD  LAW  AND  THE  NEW  ORDER 

islative  and  executive  power  in  these  matters. 
They  are  insisting  that  the  courts  should  not 
still  further  complicate  the  enormously  difficult 
problems  confronting  legislative  bodies  and  ex- 
ecutive officials,  by  imposing  upon  them  con- 
stitutional limitations  which  are  economic  theo- 
ries in  disguise. 

It  is  noteworthy  that  in  America  a  consider- 
ble  part  of  this  criticism  comes  from  a  class  which 
in  no  other  country  has  any  like  attitude  toward 
the  judiciary,  —  the  humanitarians  who  interest 
themselves  in  social  problems,  who  study  the 
conditions  of  the  working-classes,  who  are  allied 
in  one  association  or  another  in  endeavoring  to 
improve  social  and  industrial  conditions  in  the 
country,  and  who  formulate  and  support  the 
legislation  which  aims  at  mitigating  evils  which 
threaten  the  lives  of  the  poor. 

An  example  of  this  type  of  criticism  of  the 
courts  was  given  at  the  recent  Child- Welfare 
Exhibition  in  New  York.  It  was  a  series  of 
photographs  of  the  interiors  of  tenement  houses 
in  the  terribly  congested  district  of  that  city, 
showing  men,  women,  and  little  children  hud- 
dled together  in  small,  unventilated  rooms,  filled 
with  one  kind  of  merchandise  or  another,  and 
166 


CRITICIZING   THE   COURTS 

engaged  in  that  unregulated  "  home[work  "  which 
is  the  main  cause  of  that  congestion :  a  form  of 
industry  destructive  of  every  principle  of  home 
life,  and  in  which  not  only  are  adults  sweated, 
but  children  of  all  ages  labor  incredible  hours 
for  pittances  incredibly  small,  —  children  for 
whose  protection  in  the  thousands  of  tenements 
to  which  these  industries  have  now  spread,  even 
an  army  of  factory  inspectors  would  be  inade- 
quate. Over  this  series  of  photographs,  to  sug- 
gest that  these  conditions  are  its  result,  was 
printed  a  quotation  from  a  decision  of  the  Court 
of  Appeals,  holding,  nearly  twenty-seven  years 
ago,  that  the  legislature  could  not  take  away 
from  the  individual  worker  the  right  to  trans- 
form his  home  into  a  workshop,  and  that  legis- 
lation was  unconstitutional  which  attempted  to 
prevent  that  congestion  "  by  forcing  him  from 
his  home  and  its  hallowed  associations  and  bene- 
ficent influences  to  ply  his  trade  elsewhere." 

The  relation  of  the  courts  to  economics  is  not 
settled.  It  is  an  enormously  important  political 
problem,  a  problem  which  affects  and  involves 
the  whole  future  of  American  government.  It 
requires  discussion.  It  forbids  finality  to  judicial 
decisions  which  involve  this  problem  until  the 
167 


THE  OLD  LAW  AND  THE  NEW  ORDER 

best  wisdom  of  the  courts  has  been  supplemented 
and  properly  modified  and  influenced  by  the  best 
opinion  of  the  people.  Take  a  single  example, 
the  much-discussed  recent  decision  of  the  New 
York  Court  of  Appeals  in  the  Workmen's  Com- 
pensation Act  case,  with  which  the  public  is  now 
generally  familiar. 

Here  we  have  a  situation  which  gives  a  con- 
crete illustration  of  the  whole  problem.  New 
York,  like  other  American  industrial  states,  had 
and  has  a  system,  or  rather  lack  of  system,  of 
dealing  by  law  with  the  enormous  number  of  ac- 
cidents in  factories  and  industrial  establishments, 
which  its  own  courts  admit  is  unjust  to  the 
worker,  inadequate,  inefficient,  and  uncertain. 
The  legislature  appointed  a  commission  to  make 
a  careful  and  extended  examination  of  these  de- 
fects and  injustices,  and  of  the  problem  of  in- 
dustrial accidents  generally.  The  commission 
made  a  report  to  the  legislature  and  recom- 
mended certain  legislation.  That  legislation  was 
of  an  extraordinary  radical  character.  Yet  it  was 
passed,  not  only  with  a  most  surprising  lack  of 
protest  from  the  employing  classes,  but  with  the 
active  support  and  approval  of  great  employers, 
who  realized  the  weight  and  injustice  of  the  great 
1 68 


CRITICIZING   THE   COURTS 

burden  of  accident-loss  which  is  thrown  upon  the 
helpless  workers  and  their  families. 

This  legislation  was  supported  by  associations 
of  the  bar  in  the  State,  whose  representatives 
urged  that  the  gross  injustice  of  the  present  sys- 
tem needed  radical  changes,  and  recommended 
the  legislation  presented  by  the  commission. 
This  legislation  was  based  upon  a  principle,  not 
new  and  untried,  but  in  successful  operation  in 
England  and  in  every  great  commercial  country 
in  Europe.  When,  however,  this  law  was  tested 
in  the  courts,  the  Court  of  Appeals  declared  that 
this  principle  —  which  was  social  justice  as  recog- 
nized in  England  and  on  the  Continent  —  was 
in  New  York  confiscation  of  property  of  em- 
ployers without  due  process  of  law ;  and  that 
under  the  Constitution  of  New  York,  and  the 
fourteenth  amendment  of  the  Constitution  of  the 
Nation,  the  State  was  powerless  to  enact  a  law 
of  this  kind  unless  the  people  should  accomplish 
the  superhuman  task  of  amending  both  consti- 
tutions. A  proposed  amendment  of  the  State 
Constitution  is  now  before  the  legislature  as  I 
write. 

Optimistic,  indeed,  are  those  to  whom  there 
appears  to  be  nothing  dangerous  to  the  future 
169 


THE  OLD  LAW  AND  THE  NEW  ORDER 

of  American  government  In  such  conflicts  be- 
tween the  court  and  the  legislature !  To  the 
critics  of  the  judiciary  there  seem  open  but  two 
alternatives  :  either  to  accept,  with  the  Socialists, 
such  decisions  as  final  declarations  of  the  power- 
lessness  of  the  American  State  to  bring  about 
justice  by  law,  and  of  the  breakdown  of  consti- 
tutional government;  or  to  try  by  further  dis- 
cussion, and  by  criticism  of  such  judicial  conclu- 
sions, to  reach  a  definition  of  "  due  process  of 
law  "  which  does  not  involve  either  the  collapse 
of  justice  through  legislative  paralysis  produced 
by  the  courts,  or,  on  the  other  hand,  an  actual 
rather  than  a  fanciful  confiscation  of  property  or 
property  rights. 

Time  alone  will  tell  whether  critics  of  such 
decisions  are  conservative  or  radical  forces  in  our 
society.  When  Turgot  was  advocating  the  aboli- 
tion of  the  Jurandes  and  Maitrises,  he  was  at- 
tacked as  a  dangerous  radical.  History  now  re- 
gards him  as  a  great  conservative,  who  foresaw 
that  the  continuance  of  intolerable  abuses  meant 
increasing  distress  and  discontent,  and  perhaps 
revolution.  The  supporters  of  government  by 
law,  who  defended  the  Dred  Scott  case  against 
political  criticism,  considered  themselves  conserv- 
170 


CRITICIZING   THE   COURTS 

atives.    The  principle  they  defended  made  for 
war. 

The  mental  attitude  in  which  their  successors 
defend  the  courts  against  such  criticism  of  deci- 
sions involving  economic  questions  makes  for 
Socialism.  A  statement  of  that  attitude  except 
in  a  fragmentary  way  is  difficult  in  the  limits  of 
a  paper  like  mine.  It  is,  however,  something 
like  this.  A  large  class  of  well-meaning,  educated, 
well-to-do  people  in  our  country  view  with 
alarm,  not  so  much  the  causes  for  industrial  dis- 
content as  the  means  proposed  at  times  to  rem- 
edy social  maladjustment.  This  class  includes 
not  only  those  whose  opposition  is  based  upon 
purely  selfish  interests,  and  whose  opinions  are 
negligible  in  all  discussions  of  principle,  but  an- 
other class  deserving  of  the  highest  consideration, 
as  representing  a  sane  and  intelligent  conserva- 
tism. To  this  class  our  modern  legislative  tend- 
encies are  distinctly  alarming.  They  note  the 
increasing  number  of  statutes  which  regulate, 
inspect,  limit,  or  prohibit  industrial  activities 
which  had  formerly  been  free  from  state  inter- 
ference or  control.  They  fear  more  the  meddle- 
some hand  of  crude  or  careless  legislation  than 
those  evils  of  unregulated  industry  which  by  their 
171 


THE  OLD  LAW  AND  THE  NEW  ORDER 

statutes  the  lawmakers  seek  to  mitigate  or  re- 
move. 

To  these  conservatives,  the  courts  seem  the 
main,  and  at  times  the  only  power  against  what 
is  to  them  the  new  barbarism,  whose  principle 
means  of  expression  is  legislation.  They  look 
to  the  past,  and  see  in  the  regulative  legislation 
of  our  own  time  an  attempt  to  revive  in  a  new 
form  cumbrous,  unworkable,  and  destructive 
systems  of  legislation  which  belong  to  the  Mid- 
dle Ages  in  England,  and  which  France  threw 
off  with  the  Revolution.  They  say  that  history 
affords  clear  proof  that  the  adoption  of  that 
theory  of  industrial  liberty  which  began  with 
the  French  economic  philosophers  of  the  laissez- 
faire  school  contributed  more  to  the  enormous 
development  of  industry  in  the  nineteenth  cen- 
tury than  any  single  force;  that  the  impetus  to 
individual  initiative,  generated  by  the  removal 
of  legal  restraints  upon  individual  liberty,  has 
transformed  the  whole  industrial  and  social  world 
in  which  it  has  been  applied;  and  that  to  sacri- 
fice that  principle,  or  to  limit  it  by  unwise  legis- 
lation, is  not  progress  but  retrogression,  the 
repudiation  of  a  priceless  birthright. 

They  see  what  we  all  see,  that  our  political 
172 


CRITICIZING   THE   COURTS 

parties  for  the  most  part  have  no  programmes 
which  deal  with  fundamentals ;  that  references 
in  party  platforms  to  economic  problems  are 
almost  invariably  vague  generalities.  They  see 
that  in  the  absence  of  party  programmes  on 
these  subjects,  a  growing  volume  of  question- 
able legislation  is  proposed  in  state  legislatures 
and  at  Washington.  They  see  bad  laws  enacted, 
and  worse  laws  proposed.  Some  of  all  this  is 
due  to  corruption  ;  some  to  a  desire  to  gratify 
mere  mob  passion ;  and  some  of  it,  and  indeed 
most  of  it,  to  a  genuine  but  often  ill-advised  and 
ineffectual  desire  to  meet  and  remedy  social  and 
industrial  evils  which  require  law.  To  stem  this 
current  they  look  to  the  courts.  They  are  ask- 
ing the  courts  to  enlarge  their  functions  by  de- 
claring such  legislation  unconstitutional ;  by  in- 
terpreting laws  which  they  do  not  nullify,  in 
such  manner  as  to  remove  their  sting  by  ignor- 
ing their  plain  meaning.  Some  of  the  more  Bour- 
bon of  these  advocates  of  judicial  aggression  have 
even  proposed  the  abdication  by  the  legislature 
and  Congress  of  their  functions  in  dealing  with 
certain  of  these  vexed  questions,  and  the  leav- 
ing of  them  to  the  courts  for  solution  :  urging, 
for  example,  that  the  common  law  and  the  courts 
173 


THE  OLD  LAW  AND  THE  NEW  ORDER 

can,  if  undisturbed  by  meddling  legislation,  fur- 
nish an  adequate  remedy  for  the  problems  of 
industrial  trusts  ;  that  the  Sherman  Anti-Trust 
Law,  with  its  sweeping  generalities,  should  not 
be  amended  or  repealed,  but  left  for  the  Su- 
preme Court  to  furnish  the  missing  statesman- 
ship in  its  composition.1 

This  principle,  that  the  extension  of  the  power 
of  the  Court  in  the  sphere  of  government  is  or 
may  be  an  antidote  for  bad  legislation  and  tend- 
encies toward  executive  aggression,  is  a  modern 
heresy,  and  a  dangerous  one.   It  aims  to  place  in 

1  Since  this  article  was  written,  the  United  States  Supreme  Court 
has  decided  the  long  pending  Standard  Oil  case.  The  substance  of 
an  amendment  to  the  Sherman  Anti-Trust  Law,  which  Congress 
has  repeatedly  refused  to  make  since  1896,  and  which  the  Pre- 
sident in  his  message  of  January,  1 910,  refused  to  recommend,  as 
involving  an  extension  of  judicial  power  dangerous  to  the  judiciary 
itself,  has  been  now  written  into  this  law,  amid  general  rejoicing 
inthe  business  world,  by  judicial  interpretation.  In  his  message 
President  Taft  had  said,  "It  has  been  proposed,  however,  that 
the  word  « reasonable  *  should  be  made  a  part  of  the  statute,  and 
then  that  it  should  be  left  to  the  Court  to  say  what  is  a  reason- 
able restraint  of  trade,  what  is  a  reasonable  suppression  of  com- 
petition, what  is  a  reasonable  monopoly.  I  venture  that  this  is  to 
put  into  the  hands  of  the  courts  a  power  impossible  to  exercise 
on  any  consistent  principle  which  will  insure  the  uniformity  of 
decision  essential  to  just  judgment.  It  is  to  thrust  upon  the  courts 
a  burden  which  they  have  no  precedents  to  enable  them  to  carry, 
and  to  give  them  a  power  approaching  the  arbitrary,  the  abuse 
of  which  might  involve  our  whole  judicial  system  in  disaster." 

174 


CRITICIZING   THE   COURTS 

the  judge  a  responsibility  and  a  power  which  the 
Constitution  never  gave,  and  which  the  courts 
cannot  exercise  and  should  not  exercise.  There 
is  no  country  in  the  world  governed  by  courts. 
There  is  no  place  in  the  American  system  for 
such  an  experiment.  The  overdevelopment  of 
the  judiciary  is  no  cure  for  legislative  corruption 
or  inefficiency.  One  of  the  most  healthful  indica- 
tions of  the  vitality  of  American  democracy  is 
the  general  recognition  of  the  weak  spots  in  our 
government, — defects  which  these  conservatives 
point  at  incessantly,  and  for  which  they  offer 
judicial  aggression  as  a  cure.  The  common  sense 
of  the  people  rejects  that  cure  as  a  dangerous 
nostrum,  but  the  disease  is  recognized,  —  the 
partial  breakdown  of  the  machinery  for  law-mak- 
ing and  law-enforcing,  and  the  failure  of  that 
machinery  to  produce  officials  capable  either  of 
enacting,  enforcing,  or  applying  the  kind  of  law 
which  our  present  needs  demand. 

We  are  slowly  reacting  from  the  madness  of 
mob  democracy,  the  democracy  which  fills  our 
ballots  with  a  vast  number  of  elective  offices, 
bewildering  to  the  voter,  beyond  his  capacity 
of  intelligent  choice.  We  are  recognizing  these 
causes  of  the  weakness  of  the  State.  We  are 
175 


THE  OLD  LAW  AND  THE  NEW  ORDER 

everywhere  planning  revisions  of  our  laws,  in 
an  effort  to  attain  greater  legislative  and  execu- 
tive efficiency  and  honesty,  by  changes,  for  ex- 
ample, in  electoral  machinery  in  relation  to  the 
nomination  of  candidates  for  public  office.  One 
of  the  most  recent  of  these  new  proposals,  the 
judicial  recall,  is,  however,  a  direct  attack  upon 
the  independence  of  the  bench.  The  advocates 
of  judicial  aggression  must  accept  their  full  share 
of  responsibility  for  this  menace  to  judicial  free- 
dom, for  it  is  an  equally  indefensible  counter- 
proposition  to  their  own  heresy.  Friends  who 
multiply  for  us  hosts  of  new  enemies  are  liabili- 
ties, and  not  assets.  Those  who  wish  to  use  the 
courts  to  stunt  or  sterilize  democracy  are  not 
true  friends  of  the  judiciary,  despite  their  many 
protestations,  or  of  the  American  system  of  con- 
stitutional government. 

For  the  courts  to  maintain  at  all  times  under 
such  conditions,  between  such  widely  divergent 
views,  the  position  which  the  law  and  the  Con- 
stitution require,  is  difficult.  To  satisfy  both 
schools  is  impossible.  That  there  should  be 
criticism  of  the  courts  under  such  circumstances, 
with  such  jealous  scrutiny  of  each  important 
constitutional  decision,  is  inevitable.  It  is  to  the 
176 


CRITICIZING   THE   COURTS 

credit  of  the  courts  that  the  volume  of  public 
criticism  is  not  greater  ;  that  the  occasions  for  it, 
either  fanciful  or  real,  are  comparatively  so  few. 
It  is  particularly  to  their  credit  that  reactionary 
decisions  are  so  infrequent,  and  that  so  generally 
they  have  taken  in  the  consideration  of  legisla- 
tion a  true  position,  well  expressed  by  Judge 
Harlan,  when,  in  Atkin  v.  Kansas,  he  said:  — 

No  evils  arising  from  such  legislation  could  be  more 
far-reaching  than  those  which  might  come  to  our  sys- 
tem of  government  if  the  judiciary,  abandoning  the 
sphere  assigned  to  it  by  the  fundamental  law,  should 
enter  the  domain  of  legislation,  and  upon  grounds 
merely  of  justice  and  reason  or  wisdom  annul  statutes 
that  had  received  the  sanction  of  the  people's  represent- 
atives. 

The  position  in  which  the  American  courts 
are  placed  to-day  is  a  peculiarly  delicate  one. 
On  the  one  side  are  those  to  whom  modern 
American  legislation  is  the  new  barbarism  threat- 
ening the  States  and  Nation  with  a  rank  growth 
of  meddlesome,  inefficient,  unenforcible  laws 
injurious  to  industrial  development,  a  growth 
noxious  yet  inevitable,  unless  restricted,  as  they 
ask  to  have  it  restricted,  by  new  judicial  limit- 
ations. On  the  other  side  are  those  who  contend 
177 


THE  OLD  LAW  AND  THE  NEW  ORDER 

that  legislation  of  the  new  type  is  necessary 
and  unavoidable,  that  the  collective  principle  so 
clearly  expressed  in  industry  in  the  great  aggre- 
gations of  capital  can  only  be  governed,  so  as 
to  preserve  an  actual  rather  than  a  nominal  in- 
dividual freedom,  by  the  enactment  of  wise 
law ;  and  they,  too,  are  looking  to  the  courts  to 
sanction,  and  not  to  destroy,  new  legislative  pro- 
grammes, and  to  permit  such  increase  of  govern- 
mental control  over  industry  as  will  prevent  the 
exploitation  of  the  people.  Hence  the  issue  of 
criticizing  the  courts ;  hence  unreasoning  de- 
fense, and  at  times  intemperate  censure,  of  judi- 
cial decisions  involving  the  Bakeshop  Law,  the 
Workmen's  Compensation  Law,  the  Sherman 
Anti-Trust  Law,  the  Oklahoma  Bank-Guaranty 
Law,  the  Interstate  Commerce  Law,  and  other 
legislative  experiments  with  the  collective  prin- 
ciple. 

That  such  an  issue  should  exist  is  inevitable. 
A  conservative  institution  is  always  subject  to 
strain  and  stress  in  a  period  of  progress,  and  in 
our  country  the  courts  have  always  been  our 
greatest  and  best  conservative  institution.  No 
single  fact,  however,  more  clearly  indicates  the 
general  respect  and  confidence  of  the  people  for 
178 


CRITICIZING   THE   COURTS 

the  kind  of  conservatism  which,  the  courts  have 
so  long  expressed,  than  that  no  substantial  fac- 
tion or  party  in  our  country  to-day  desires  the 
judiciary  to  throw  off  that  conservatism  and 
become  "  radical,"  or  even  "  progressive,"  as  that 
term  is  currently  used.  What  we  ask  from  our 
courts  is,  in  fuller  measure,  that  which  in  the 
main  we  are  conscious  that  we  receive  :  a  con- 
servatism which  is  consistent  with  a  not  too  re- 
mote possibility  of  progress,  a  conservatism  free 
from  all  entanglements  with  either  radicalism  or 
reaction,  a  conservatism  which  harmonizes  the 
past  with  the  future  by  preserving  the  present 
from  violent  oscillations  through  contending 
forces. 


VII 

The  Police  Judge  and  the  Public 


VII 

The  Police  Judge  and  the  Public 

Many  years  ago  a  learned  naturalist  wrote  a 
book  on  the  topic  of"  Earthworms."  It  seems  at 
first  blush  a  foolish  subject  for  a  book.  Those 
who  fish  know  that  earthworms  are  good  bait  for 
certain  fish ;  those  who  do  not  fish  can  conceive 
no  great  importance  in  earthworms.  Yet  this 
naturalist,  after  much  study,  was  able  to  prove 
that  the  fertility  of  the  earth  was  to  an  extraor- 
dinary degree  dependent  upon  the  activities  of 
these  interesting  little  creatures,  who,  by  chang- 
ing soil,  brought  the  low  underlying  soil  to  the 
surface  and  made  it  rich. 

The  average  citizen  has  as  much  regard  for 
the  police  judge  as  he  has  for  the  earthworm. 
To  him  the  police  judge  is  a  sort  of  necessary 
evil,  performing  a  function  akin  to  that  of  the 
embalmer  or  the  man  who  attends  to  cesspools. 
The  lawyer  who  is  accustomed  to  spending  his 
working  day  in  the  study  of  nice  questions  of  law 
and  in  the  exercise  of  logic  and  ingenuity  in 
courts,  presided  over  by  learned  jurists,  in  which 
183 


THE  OLD  LAW  AND  THE  NEW  ORDER 

property  rights  are  determined,  and  where  well- 
dressed  litigants  explain  their  troubles  to  jurors 
who  are  required  to  own  property  to  qualify 
them  to  serve,  where  order,  decorum,  and  the 
usual  sanitary  surroundings  prevail  —  this  law- 
yer knows  little,  and  cares  to  know  less,  of  those 
huddled,  ill-smelling,  ill-ventilated  places,  the 
police  courts,  where  the  ignorant,  the  vicious, 
the  propertyless,  get  their  notions  of  law  ;  where 
the  foreigner  makes  his  first  acquaintance  with 
American  justice. 

Because  we  have  accepted  for  so  many  years 
the  lawyer's  professional  attitude  toward  the 
police  court,  because  to  be  a  police  judge  is  to 
be  endowed  with  a  doubtful  dignity,  the  police 
court  has  been  the  branch  of  the  American  sys- 
tem of  justice  which  has  improved  the  most 
slowly.  It  has  been  dominated  by  ward  politics ; 
it  has  been  the  court  in  which,  in  the  novels, 
the  alderman  really  presides  with  his  all-power- 
ful "pull."  The  police  judge  is  in  the  popular 
mind  to-day  what  Justice  Shallow  was  in  Shake- 
speare's England.  We  are  just  now  interested, 
however,  in  criminal  law  reform.  We,  the  pub- 
lic, wish  our  system  for  punishing  crime  to  ac- 
quire greater  certainty  ;  we  want  to  abolish  anti- 
184 


POLICE   JUDGE   AND   PUBLIC 

quated  technicalities  in  the  higher  courts  in 
which  serious  offenses  are  tried.  But  we  are  not 
yet  generally  interested  in  the  police  judge  or 
in  his  dingy,  dirty  court.  Because  we  have  not 
been  interested,  because  the  enormous  practical 
importance  of  the  police  magistracy  so  long  has 
been  unrecognized,  we  have  in  many,  if  not  in 
most,  of  our  city  police  courts,  conditions  which 
are  appalling,  and  the  correction  of  which  is  a 
matter  of  the  most  urgent  importance. 

The  police  court  is  the  court  of  all  courts 
which  should  be  dominated  by  intelligence 
and  honesty.  It  offers  the  greatest  and  most 
neglected  field  for  constructive  law  reform  of 
a  type  which  as  yet  is  almost  unknown.  The 
field  is  there  because  the  really  great  problem 
of  criminal  law  is  the  one  which  will  exist  after 
all  the  technicalities  which  now  defend  the  guilty 
from  the  punishment  of  the  State  have  been 
brushed  away.  The  decrease  of  crime  is  a  prob- 
lem which  sometime  will  be  attempted,  and 
perhaps  will  be  solved  by  the  police  court  and 
through  the  activities  which  must  come  from  or 
centre  about  it.  For  this  reason  it  is  a  most  in- 
viting, though  still  neglected,  opportunity,  open 
to  those  who  are  interested  not  in  the  criminal 
185 


THE  OLD  LAW  AND  THE  NEW  ORDER 

law  of  the  past  but  of  the  future.  That  law 
must  have  a  constructive  side.  It  will  have  to 
be  a  criminal  law  which  is  not  merely  devoid  of 
technicalities  and  unjust  opportunities  of  escape 
for  the  guilty.  It  must  have  a  branch  which 
deals  with  the  reform  of  the  criminal,  a  matter 
of  infinitely  greater  importance  than  any  which 
has  yet  received  practical  attention.  In  this 
phase  the  public  lately  has  become  deeply  in- 
terested, and  its  interest  is  manifested  in  a 
striking  way. 

Consider  an  example:  In  a  Western  State  a 
young  man,  elected  to  a  court  of  peculiar  type, 
which  combines  the  functions  of  the  police  court 
with  others  of  a  different  character,  has  accom- 
plished such  results  in  one  special  part  of  the 
police  court  side  of  his  work  as  to  give  him  a 
great  national  reputation. 

That  reputation  has  been  based  on  an  idea  of 
the  greatest  possible  simplicity  and  on  what  he 
was  able  to  accomplish  through  it.  The  idea 
was  that  the  police  judge  should  do  something 
with  children,  that  they  should  be  better,  and 
not  worse,  because  they  come  before  him.  In- 
stead of  operating  the  judicial  machinery  in  the 
usual  perfunctory,  treadmill  fashion  customary 
186 


POLICE   JUDGE   AND   PUBLIC 

among  these  magistrates,  he  did  three  amazing 
things :  first,  he  took  an  interest  in  the  condi- 
tions which  made  the  individual  boy  or  girl  go 
wrong  ;  second,  he  took  an  interest  in  the  child 
personally  apart  from  the  offense  with  which  the 
child  was  charged  ;  third,  he  took  the  trouble 
to  examine  the  places  of  correction  to  which  the 
machinery  of  his  office  in  its  usual  operation 
would  require  him  to  send  the  child  offender  for 
punishment.  The  result  has  made  Judge  Lind- 
sey  and  his  Children's  Court  famous. 

One  fact  regarding  the  success  of  Judge 
Lindsey  which  is  specially  worthy  of  comment 
is  the  instant  response  of  the  people  to  his  work, 
the  recognition  and  interest  which  that  work  has 
aroused  all  over  our  country,  and  the  almost 
pathetic  eagerness  with  which  we  have  expressed 
our  approval  of  a  police  court  judge  who  is 
enough  interested  in  one  corner  of  his  job  to  do 
something  really  constructive  toward  develop- 
ing a  useful  court  out  of  one  of  a  traditional  and 
backward  type. 

The  public  ordinarily  is  in  advance  of  its  ex- 
isting law  in  the  treatment  of  crime  and  crim- 
inals. It  only  needs  officials  who  take  more  than 
a  perfunctory  interest  in  their  work  and  who 
187 


THE  OLD  LAW  AND  THE  NEW  ORDER 

will  give  the  people  the  facts  and  the  plans ;  the 
improvements  will  follow.  When  John  Howard 
was  made  High  Sheriff  of  Bedford  County  in 
England  in  1773,  he  took  more  interest  in  his 
job  than  had  his  predecessors,  for  he  visited  jails 
himself,  instead  of  leaving  such  matters  to  his 
deputy,  as  his  predecessors  had  done.  He  found 
the  jails  under  his  control  in  a  dreadful  condi- 
tion, and  in  them  numbers  of  prisoners  who  had 
been  there  for  months  after  they  had  either 
been  found  innocent  by  a  petty  jury,  or  who, 
for  lack  of  evidence  against  them,  had  not  even 
been  indicted  by  the  grand  jury.  He  learned 
that  these  men  were  prisoners  simply  because 
they  could  not  pay  the  jailers'  and  turnkeys* 
fees  for  their  discharge.  Now  here  was  where  a 
perfunctory  official's  duty  ended.  So  far  as  these 
innocent  persons  were  concerned,  their  contin- 
ued incarceration  was  legal;  the  jailer  and  the 
turnkey  were  legally  entitled  to  these  fees,  and 
no  person  imprisoned  in  the  jail  could  have  his 
liberty,  even  if  he  were  declared  to  be  innocent, 
unless  he  were  able  to  pay  these  fees. 

Strictly  speaking,  it  was  not  Howard's  busi- 
ness to  change  the  law.   It  was  not  his  business 
to  pass  laws  requiring  sanitation  and  ventilation 
188 


POLICE   JUDGE   AND   PUBLIC 

in  the  jails.  It  was  not  his  business  to  go  about 
and  examine  the  jails  in  other  counties  as  he 
did.  John  Howard  was  the  father  of  English 
prison  reform  because  he  did  these  things  which 
were  none  of  his  business.  The  perfunctory 
sheriffs  who  had  preceded  him  had  never  inves- 
tigated, or,  if  they  had  investigated,^ had  never 
done  anything  about  these  conditions  with  which 
Howard  busied  himself.  The  reform  was  not  a 
difficult  one",  it  had  simply  lacked  a  man.  One 
year  after  Howard  was  appointed  Sheriff  of 
Bedford  County,  Parliament  enacted  laws  due  to 
his  representation  of  facts  as  to  the  condition  of 
prisons.  The  fees  which  for  years  had  kept  poor 
and  innocent  persons  in  prison  were  abolished, 
and  laws  were  passed  requiring  the  prisons  to  be 
cleaned  and  ventilated,  prisoners  to  be  clothed, 
and  infirmaries  to  be  provided  for  the  sick. 

We  hear  so  much  about  dishonest  public  of- 
ficials in  these  days  that  we  are  sometimes  in- 
clined to  exaggerate  the  importance  of  the  pec- 
ulator as  an  enemy  of  progress.  It  is  perhaps 
no  exaggeration  to  say  that  the  dead-weight  of 
the  routine  official  is  a  heavier  burden.  The  re- 
form of  governmental  machinery,  to  be  done 
effectively,  should  be  done  largely  from  inside. 
189 


THE  OLD  LAW  AND  THE  NEW  ORDER 

It  is  done  badly  in  many  cases  because  it  has  to 
be  accomplished  from  outside,  through  the  ac- 
tivities of  persons  who  are  not  fully  familiar  with 
all  the  facts  and  are  not  in  a  position  to  get 
them,  and  who  have  to  do  work  which  could 
be  done  more  efficiently  through  officials  whose 
business  it  is  to  know  the  facts,  but  who  have 
no  sense  of  responsibility  for  improving  condi- 
tions in  their  own  provinces,  and  who  have  no 
special  desire  to  change  anything  but  their  sal- 
aries. The  most  conspicuously  useful  servants 
our  country  has  had  in  public  office  have  been 
very  largely  men  who  had  a  talent  for  not  mind- 
ing their  own  business. 

When  the  improvement  of  conditions  in  a 
given  branch  of  government  is  not  accomplished 
through  the  cooperative  action  of  the  public 
officials  in  it,  or  when  that  cooperative  action  is 
insufficient  for  the  requirements  of  normal  pro- 
gress, it  proceeds,  not  by  slow,  regular  steps  and 
stages,  but  by  long  pauses  and  adventitious 
jumps.  One  of  these  "jumps"  in  police  court 
reform  has  recently  taken  place  in  New  York. 
It  came  as  the  result  of  the  inquiries  of  a  Com- 
mission appointed  by  Governor  Hughes  in 
1908,  called  a  "  Commission  to  inquire  into  the 
190 


POLICE   JUDGE   AND    PUBLIC 

Courts  of  Inferior  Criminal  Jurisdiction,"  which 
made  the  report  of  its  investigation  to  the  New 
York  Legislature  in  1 910,  on  the  basis  of  which 
report  legislation  was  at  once  enacted  in  that 
State. 

While  in  one  aspect  of  its  work  this  Com- 
mission was  dealing  with  an  essentially  local 
matter,  —  the  conditions  and  workings  of  the 
lower  criminal  courts  of  a  single  State,  and  more 
especially  of  a  single  great  city,  —  the  report  is 
of  more  than  local  interest.  It  is  a  study  of  a 
concrete  phase  of  a  general  problem,  and  the 
work  of  the  Commission  will  lose  one  half  of 
its  potential  value  if  it  does  not  lead  to  similar 
inquiries  in  other  States. 

The  magistrates'  or  police  courts  of  New 
York  City  are,  through  the  magnitude  of  the 
business  done  in  them,  the  most  important  of 
their  kind  in  the  United  States.  In  them,  the 
Commission  declares,  in  the  neighborhood  of 
three  hundred  thousand  persons  are  annually 
brought  before  the  magistrates  to  answer  some 
charge  or  complaint  against  them.  Add  to  this 
enormous  total  the  spectators  or  witnesses,  the 
friends  and  relatives  of  complainants  and  de- 
fendants who  fill  these  courts  every  day  in  the 
191 


THE  OLD  LAW  AND  THE  NEW  ORDER 

year,  remembering  that  the  vast  majority  of 
this  throng  are  from  the  lower  ranks  of  society, 
and  that  they  get  from  the  workings  of  the  po- 
lice court  their  principal,  if  not  their  sole,  con- 
cept of  American  justice  and  the  power  and 
dignity  of  American  law,  and  to  the  mind  of 
even  the  most  indifferent  the  character  and  qual- 
ity of  police  court  justice  becomes  a  matter  of 
superlative  importance. 

The  well-to-do  citizen  subjected  to  the  an- 
noyance of  an  arrest  because  of  a  too  impatient 
automobile,  when  he  sits  in  a  New  York  police 
court  awaiting  his  turn,  in  the  huddled  hurry 
of  its  complex  confusion,  looks  with  curiosity 
at  the  line  of  unfortunates  who  come  one  by 
one  from  a  door  at  a  side  of  the  court-room 
to  the  magistrate's  desk.  The  men  and  women 
who  compose  this  cavalcade  at  that  moment,  in 
the  eye  of  the  law  at  least,  are  presumed  to  be 
innocent.  They  simply  have  been  without  funds 
or  well-to-do  friends  through  whom  to  obtain 
bail.  They  have  been  "detained"  until  the 
magistrate  has  inquired  into  the  facts  to  see 
whether  there  is  any  just  complaint  against 
them,  and  the  inquiry  into  those  facts  is  about 
to  take  place.  Between  the  time  of  arrest  and 
192 


POLICE   JUDGE   AND   PUBLIC 

this  pending  examination,  how  have  these  pre- 
sumably innocent  persons  been  treated  by  the 
State  ?  How  have  they  been  detained  ?  After  a 
night  in  a  station-house,  in  which  only  the  most 
hardened  offenders,  accustomed  to  park  benches, 
can  sleep,  and  after  a  breakfast  which  only  the 
least  civilized  can  eat,  unkempt  and  sleepy, 
the  prisoner  comes  to  the  portal  of  the  court,  the 
detention  pen,  in  which  he  or  she  awaits  the  ex- 
amination by  the  judge. 

The  Commission  examined  the  detention 
pens.  The  conditions  they  found  in  substan- 
tially all  of  these  courts  were  bad,  and  in  many, 
particularly  in  the  busiest  of  them,  shocking. 
What  they  found  is  best  expressed  in  the  lan- 
guage of  the  report  itself:  — 

In  the  Second  or  Jefferson  Market  Court,  where 
the  night  court  is  held,  the  detention  pens,  to  use  the 
language  of  Magistrate  House,  "  are  in  a  horrible  con- 
dition. There  is  a  little  bit  of  a  lobby  and  two  large 
pens.  One  side  the  women,  and  the  other  side  the 
men.  In  the  women's  detention  pen,  over  in  the  cor- 
ner of  a  little  jog,  is  a  toilet,  but  no  door  and  no 
screen  to  shut  it  off.  In  order  to  pass  these  detention 
pens,  you  have  to  pass  through  a  door  that  takes  the 
prisoners  back  into  the  prison  that  is  under  the  super- 
vision of  the  Commissioner  of  Corrections,  provided 

193 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  prisoner  is  held  for  trial,  is  fined,  or  is  held  for 
examination." 

The  Commission,  upon  the  occasions  of  its  several 
visits,  to  the  night  court,  held  at  Jefferson  Market, 
was  shocked  by  the  conditions  resulting  from  these 
primitive  and  inadequate  detention  pens.  Women  were 
huddled  together,  young  and  old,  first  and  hardened 
offenders,  some  innocent  and  subsequently  discharged, 
and  this  women's  pen  immediately  adjoins  the  men's 
pen,  similarly  crowded.  On  several  occasions  there 
were  more  prisoners  than  these  pens  could  accommo- 
date, even  with  all  the  crowding,  and  the  prisoners, 
men  and  women  indifferently,  stood  in  front  of  and 
beyond  these  pens.  Some  of  the  prisoners  were  en- 
gaged in  loud  talking,  and  the  young  and  often  the 
innocent  were  subjected  to  the  indignity  of  being 
compelled  to  hear  vile  and  blasphemous  language. 

To  this  and  the  other  courts  are  brought  large  num- 
bers of  respectable  persons  who  are  not  charged  with 
any  offense  involving  moral  turpitude,  but  merely  with 
the  breach  of  some  regulative  law  or  ordinance. 

In  the  courts  in  the  Borough  of  Brooklyn  the  same 
conditions  prevail,  in  the  majority  of  instances,  of  in- 
adequate accommodations  and  improper  proximity  of 
the  pens  for  men  to  the  pens  for  women,  and  in 
some  instances  the  conditions  are  not  only  reprehen- 
sible but  absolutely  intolerable. 

Until  recently  in  New  York,  when  a  pris- 
oner came  from  the  detention  pen  to  the  court- 
room for  his  examination,  he  was  at  once  brought 
194 


POLICE   JUDGE   AND   PUBLIC 

into  contact  with  an  institution  which  has  re- 
sulted in  an  immense  amount  of  injustice, 
through  which  there  can  be  no  doubt  that  hun- 
dreds, if  not  thousands,  of  innocent  men  and 
women  have  been  subjected  to  undeserved 
punishment  for  crime.  This  institution  was  a 
matter  of  stupid  and  senseless  court-room  archi- 
tecture, the  infamous  "  bridge." 

The  old  system  of  police  court  procedure 
was  as  follows :  The  policeman  who  made  the 
arrest  of  the  prisoner  brought  him  across  the 
court-room  floor  and  placed  him  in  front  of  a 
rail  about  as  high  as  the  average  adult's  should- 
ers. This  rail  was  the  outer  guard-rail  of  an 
elevated  platform  reached  by  two  steps  at  either 
side,  and  located  immediately  in  front  of  the 
magistrate's  high  desk.  The  accuser  and  his 
witnesses,  the  policeman,  the  police  court  re- 
porter, and  the  lawyers,  if  there  were  any  in 
the  case,  stood  on  this  platform  or  bridge,  where 
they  were  on  the  same  level  with  the  magistrate 
and  near  enough  to  touch  him.  If  they  spoke 
in  a  whisper,  the  magistrate  could  hear  what 
they  said.  They  spoke  with  their  faces  toward 
the  magistrate  and  their  backs  to  the  prisoner, 
who  peered  upward  like  a  rat  from  a  pit.  The 
195 


THE  OLD  LAW  AND  THE  NEW  ORDER 

accuser  was  given  a  psychological  advantage. 
He  was  above  the  man  he  accused,  and  pointed 
down  at  him  when  he  gesticulated.  He  was 
close  to  the  judge  and  on  the  same  level  while 
the  prisoner  was  six  or  eight  feet  away  from 
him  and  below  him.  The  law  says  that  a  person 
accused  of  crime  is  entitled  to  be  confronted 
with  the  witnesses  against  him.  The  architect 
of  the  bridge  contrived  that  the  accused  person 
should  see  only  the  sides  of  the  faces  or  the 
backs  of  the  heads  of  those  who  bore  witness 
against  him. 

The  report  of  the  Commission  advising  the 
abolition  of  the  bridge  is  worth  repeating:  — 

While  the  hearing  is  going  on,  the  complaining  wit- 
ness, in  most  instances  a  police  officer,  stands  close  to 
the  bench,  with  his  back  to  the  defendant,  often  giv- 
ing his  statement  or  testimony  in  a  voice  so  low  that 
the  defendant,  when  he  is  below  the  bridge,  cannot 
possibly  hear  him;  the  magistrate  himself  likewise  fre- 
quently speaks  in  tones  so  subdued  as  to  be  inaudible 
to  the  prisoner,  with  the  result  that  the  policeman  who 
is  stationed  on  the  bridge  plays  entirely  too  important 
a  part,  frequently  conveying  in  laconic  sentences  to 
the  prisoner  the  nature  of  the  charge  and  the  questions 
of  the  judge,  and  then  conveying  back  to  the  judge 
the  mumbled  answers  of  the  prisoner.  On  a  number 
of  occasions  it  was  apparent  to  the  Commission  that 
196 


POLICE   JUDGE   AND   PUBLIC 

the  prisoner  did  not  know  what  was  going  on,  and 
that  the  hearing  was  one  only  in  name.  There  being 
no  witness  chair,  the  whole  proceeding  lacked  even  the 
semblance  of  judicial  procedure.  Frequently  there  are 
so  many  persons  on  and  around  the  bridge  that  it  is  al- 
most impossible  for  the  prisoner  to  see  the  magistrate. 
The  interior  arrangement  of  these  court-rooms,  thus 
briefly  described,  and  this  method  of  conducting  hear- 
ings, are  disgraceful  in  an  enlightened  community,  and 
should  be  forthwith  ended  once  and  for  all. 

The  thing  has  been  done ;  the  bridge  is  now 
gone.  By  a  few  days'  work  carpenters  have 
changed  the  whole  aspect  of  the  New  York 
police  court,  and  have  immensely  improved  the 
possibility  of  justice  to  the  poor.  The  pity  is 
that  so  simple,  so  obvious,  so  cheap,  and  so 
important  a  thing  should  have  taken  so  long 
and  have  required  the  solemn  investigations  of 
a  Commission  to  discover  and  correct  it.1 

1  It  has  taken  a  Commission  to  reform  this  simple  matter,  the 
wrong  of  which  has  been  apparent  for  twenty  years  to  every 
thinking  observer  who  has  been  in  a  New  York  police  court.  The 
same  conditions  still  exist,  however,  in  a  different  form  in  the  city's 
higher  criminal  courts.  In  an  endeavor  to  make  those  courts  awe- 
inspiring,  and  to  give  large  and  commodious  quarters  consistent 
with  his  dignity  to  the  District  Attorney,  the  architect  of  the 
Criminal  Court  Building  has  provided  a  large  railed  enclosure 
immediately  in  front  of  the  judge's  dais,  at  one  side  of  which  are 
the  seats  for  the  jurors.  The  defendant  is  usually  placed  outside 
this  enclosure  and  so  far  from  the  judge  and  the  witness  stand, 

197 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Of  course  the  abolition  of  the  bridge  will 
mean  less  speed  in  police  court  hearings.  A 
prisoner  put  in  a  position  where  he  can  know 
what  is  being  said  against  him,  instead  of  re- 
ceiving the  scraps  of  information  which  formerly 
reached  him  at  the  bridge,  is  quite  likely  to 
have  more  to  say  in  his  own  defense.  It  was 
actually  urged  in  opposition  to  the  Commis- 
sion's proposal  to  abolish  the  bridge  that  any 
procedure  which  should  make  for  a  more  de- 
liberate hearing  would  involve  much  time  and 
cause  much  delay  !  The  Commission  very  wisely 
refused  to  give  weight  to  any  such  extraordin- 
ary argument. 

which  adjoins  the  judge's  seat,  that  he  can  hear  only  with  diffi- 
culty what  is  being  said  against  him.  On  certain  days  groups  of 
offenders  who  have  either  pleaded  guilty  or  who  have  been  con- 
victed by  juries  are  brought  up  for  sentence.  The  prisoner  is 
stationed  outside  the  farther  rail  of  this  enclosure  and  about  thirty 
feet  from  the  witness  stand.  The  witnesses  for  or  against  him, 
who  come  to  tell  the  judge  matters  intended  to  affect  the  extent 
of  his  punishment,  go  upon  the  witness  stand  and,  talking  within 
five  feet  of  the  judge,  naturally  raise  their  voices  only  sufficiently 
for  his  ears.  It  is  physically  impossible  for  the  prisoner  to  hear 
anything  that  is  said.  The  judge  recognizes  this  and  occasion- 
ally, but  not  often,  raises  his  voice  and  tells  the  prisoner  what 
some  one  has  said  against  him  to  afford  him  an  opportunity  to 
explain  or  deny.  Yet  it  is  the  statements  of  these  witnesses  which, 
substantially  unheard  by  the  defendant,  influence  and  often  con- 
trol the  judge  in  a  determination  of  vital  importance  to  the  de- 
fendant, the  sentence  to  be  imposed  upon  him. 

198 


POLICE   JUDGE   AND   PUBLIC 

The  importance  of  giving  a  judicial  dignity 
to  proceedings  in  the  police  court  cannot  be 
recognized  too  soon,  and  the  Commission  very 
properly  laid  emphasis  upon  this  matter.  It 
would  be  unjust  to  say  that  none  of  the  New 
York  police  magistrates  have  regarded  this  as 
essential.  It  is,  however,  fair  to  say  that  the  ma- 
jority of  them,  at  least  in  the  congested  districts 
of  the  larger  boroughs,  for  years  have  been  run- 
ning courts  in  which  there  has  been  no  dignity, 
in  which  the  crowd  of  persons  standing  around 
the  judge's  desk,  talking  to  the  clerk,  talking 
to  one  another,  or  passing  to  and  fro,  has  been 
such  as  to  make  the  process  of  dealing  out  crim- 
inal justice  resemble  nothing  so  much  as  a  bar- 
gain counter  in  a  very  dirty  department  store. 

It  would  be  unjust  to  place  on  the  police 
judge  the  sole  responsibility  for  the  conditions 
in  which  he  has  in  the  past  been  obliged  to  do 
his  judicial  work.  So  long  as  the  dignity  and  im- 
portance of  his  office  are  unrecognized,  so  long 
as  mayors  can  be  found  who  will  make  grossly 
unfit  appointments  to  these  benches  for  purely 
political  reasons,  of  men  mentally  and  morally 
unfit  for  any  judicial  office,  so  long  as  the  city 
itself  has  so  little  regard  for  the  surroundings  in 
199 


THE  OLD  LAW  AND  THE  NEW  ORDER 

which  justice  has  to  be  dispensed  as  to  require 
buildings  to  be  used  for  court  purposes  which 
are  so  dirty  or  dilapidated  as  to  be  a  menace  to 
health,  we  are  not  entitled  to  expect  in  them  a 
high  standard  of  justice,  or  even  a  reasonable 
show  of  dignity. 

The  Commission  has  shown  clearly  the  need 
of  large  expenditures  on  new  buildings  and  on 
repairs  upon  those  which  still  can  be  repaired. 
There  should  be  enough  public  interest  aroused 
to  induce  the  public  authorities  to  spend  the 
money  which  these  improvements  require.  The 
legislation  which  has  resulted  from  the  investi- 
gations of  the  Commission  will  not  compel  the 
erection  of  decent  court  edifices,  nor  the  build- 
ing or  renovation  of  places  of  detention  for  those 
accused  of  crime  —  that  still  remains  for  the  city 
authorities.  It  is  to  be  hoped,  however,  that  the 
time  is  at  last  ripe  when  these  conditions  will  be 
changed,  when  a  Children's  Court  in  New  York 
City,  for  example,  will  be  created  in  fact  instead 
of  in  name,  as  a  substitute  for  the  very  crowded 
old  building  which  serves  that  purpose  now. 

The  legislation  which  has  resulted  from  the  re- 
port of  the  Commission  has,  on  the  whole,  been 
admirable.  The  laws  relating  to  the  courts  of 
200 


POLICE   JUDGE   AND  PUBLIC 

inferior  criminal  jurisdiction  in  New  York  City 
are  now  brought  together  in  one  definite  enact- 
ment to  take  the  place  of  a  disjointed  patchwork, 
the  accumulation  of  many  years  of  haphazard 
legislation.  Those  who  are  interested  in  this 
branch  of  law  will  no  longer  be  embarrassed  by 
an  inability  to  find  the  law,  a  result  in  itself  ex- 
tremely desirable.  The  City  Magistrates'  Court, 
corresponding  to  the  police  court  of  ancient  days, 
is  now  divided  into  two  sections,  the  first  divi- 
sion embracing  Manhattan  and  the  Bronx,  and 
the  second  the  rest  of  the  city,  each  division  con- 
sisting of  sixteen  magistrates  and  a  chief  magis- 
trate. These  magistrates  sit  separately  in  the 
various  parts  of  the  city.  The  old  magistrates 
continue  in  office,  their  successors  being  ap- 
pointed, as  heretofore,  by  the  Mayor.  Several 
branches  of  this  court  are  provided  for,  includ- 
ing a  night  court  for  men  and  a  separate  court 
of  like  character  for  women,  and  a  so-called  Do- 
mestic Relations  Court,  to  be  held  in  each  of  the 
boroughs  of  the  city,  in  which  all  persons  com- 
pelled by  law  to  support  poor  relatives,  persons 
charged  with  abandonment  and  non-support, 
husbands  who  desert  their  wives,  and  mothers 
who  desert  their  children,  are  brought  for  trial. 
201 


THE  OLD  LAW  AND  THE  NEW  ORDER 

Provision  is  made  for  the  handling  of  a  large 
class  of  petty  offenses,  violations  of  the  city  ord- 
inances, etc.,  without  the  unnecessary  arrest  of 
the  person  charged.  This  is  done  by  legalizing 
a  form  ofsummons  to  be  served  by  police  officers 
upon  the  person  charged  with  the  offense,  re- 
quiring his  attendance  at  a  police  court  to  answer 
the  complaint  at  some  given  time.  The  statute 
collects  and  improves  the  provisions  relating  to 
the  probation  of  offenders,  both  of  adults  and 
minors.  It  forbids  magistrates  to  be  represent- 
atives of  any  political  party  on  any  executive 
committee  or  governing  body  of  the  party, 
thereby  taking  the  "  district  leader "  off  the 
bench  and  stopping  an  ancient  scandal  by  pre- 
venting the  use  of  judicial  power  for  political 
purposes.  It  requires  separate  places  of  de- 
tention of  female  and  male  prisoners  and  of 
youthful,  less  hardened  offenders  and  older  and 
more  hardened  offenders  of  the  same  class,  and 
requires  every  cell  or  room  adjacent  to  a  court, 
used  for  the  detention  of  prisoners  or  as  a  wait- 
ing-room for  witnesses,  to  be  kept  in  a  sanitary 
condition.  It  definitely  requires  proper  facilities 
to  be  afforded  to  every  person  arrested  to  com- 
municate with  his  friends  without,  as  heretofore, 
202 


POLICE   JUDGE   AND   PUBLIC 

being  subjected  to  the  extortion  of  police  officers 
and  attendants.  It  directs  a  system  of  finger- 
print identification  of  prostitutes  in  the  night 
court  for  women. 

Far  more  important,  howeyer,  is  the  provision 
which  the  new  law  makes  for  a  chief  magistrate 
with  broad  powers,  who  is  authorized  by  the  act 
to  assign  the  other  magistrates  to  duty  in  the 
various  branches  of  the  court,  to  fix  their  hours, 
and  supervise  their  work  and  their  records.  It  is 
one  of  the  most  promising  features  of  the  new 
legislation.  The  position  is  one  of  great  possi- 
bilities, and  a  chief  justice  of  high  administrative 
efficiency  can  accomplish  much  in  reorganizing 
and  improving  the  court. 

These  changes  are  all,  no  doubt,  valuable. 
On  another  and  equally  important  branch  of 
the  police  court  problem  —  the  jurisdiction  and 
powers  of  the  court  itself —  there  is  much  still 
to  be  done.  The  police  judge  prior  to  the  new 
legislation  had  very  little  authority  to  impose 
fines  or  imprisonment,  even  for  the  pettiest 
offenses.  Instead  of  largely  increasing  his  power 
to  impose  summary  punishment  for  offenses 
of  the  misdemeanor  class,  the  only  actual  exten- 
sion of  power  which  the  new  legislation  has  pro- 
203 


THE  OLD  LAW  AND  THE  NEW  ORDER 

vided  for  is  that  which  permits  the  judges  to 
punish  automobilists  who  are  "  first  offenders," 
and  persons  cruel  to  animals.  All  other  misde- 
meanor cases  they  "  examine,"  hear  both  sides, 
and  then,  instead  of  deciding  what  punishment, 
if  any,  is  to  be  administered,  hold  the  defendant, 
if  there  seems  to  be  enough  evidence  against 
him,  for  Special  Sessions,  a  court  presided  over 
by  three  justices  sitting  together,  where  the 
whole  thing  has  to  be  gone  over  de  novo  and 
judgment  rendered.  The  Commission  believed 
it  advisable  to  maintain  this  system  rather  than 
to  change  it  radically.  Those  who  have  seen  in 
times  past  the  present  Court  of  Special  Sessions 
in  Manhattan  at  work  trying  to  grind  out  the 
accumulated  cases  sent  there  from  police  magis- 
trates' courts,  running  often  from  one  hundred 
and  fifty  to  two  hundred  cases  a  day,  have  seen 
a  spectacle  of  the  law's  hurry,  compared  with 
which  the  law's  delay  seems  trifling  and  unim- 
portant. The  system  itself  is  entirely  illogical 
and  archaic,  but,  if  it  is  to  continue,  the  Commis- 
sion has  at  least  improved  it  by  increasing  largely 
the  number  of  Special  Sessions  judges. 

There  is  no  scientific  or  logical  reason  for  the 
existence  anywhere  of  a  system  which  either  re- 
204 


POLICE  JUDGE   AND   PUBLIC 

quires  or  permits  cases  involving  petty  misde- 
meanors to  be  heard  on  their  merits  and  fully 
investigated  by  a  judge,  and  which  then  forbids 
that  judge  to  decide  the  cases  which  he  has 
heard,  but  simply  requires  him  to  sift  out  those 
which  merit  retrial  in  some  other  court  by 
three  judges  authorized  to  pass  sentence.  This 
duplication  of  labor  is  indefensible  except  on 
practical  rather  than  scientific  grounds.  It  makes 
for  delay  where  promptness  is  indispensable.  It 
is  a  procedure  akin  to  the  indefensible  treadmill 
method  in  vogue  in  civil  cases  in  the  Justices' 
and  Common  Pleas  Courts  of  Philadelphia, 
which  are  the  subjects  of  bitter  complaint  from 
poor  litigants.  It  is  still  more  harmful  in  crim- 
inal than  in  civil  law.  This  duplicate  trial  pro- 
cedure not  only  makes  for  delay,  but  it  imposes 
upon  the  complainant  and  his  witnesses  a  double 
burden  of  spending  two  at  least  and  often  three 
days  in  court  attendance  in  petty  misdemeanor 
cases  where  one  should  suffice,and  tends  to  dis- 
courage thereby  complaints  —  a  distinct  disad- 
vantage to  the  peace  and  order  of  the  city.  If, 
as  has  been  urged,  many  of  the  police  judges  in 
New  York  are  not  to  be  trusted  to  exercise  an 
actual  judicial  power,  the  Bench  should  be  reor- 
205 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ganized.  Power,  and  not  the  mere  appearance  of 
power,  should  exist  in  that  court. 

The  objection  to  such  a  court  as  this  Court 
of  Special  Sessions  is  not  to  its  personnel  but  to 
its  theory.  It  is  an  anachronism.  The  judicial 
machinery  of  which  it  forms  a  part  is  unduly 
complicated  and  needs  simplification.  In  me- 
chanics a  machine  which  provides  two  moving 
parts  to  do  work  which  can  better  be  done  by  one, 
if  properly  adjusted,  lacks  mechanical  perfection. 
The  same  criticism  is  equally  applicable  to  the 
relation  between  the  police  court  and  the  Court 
of  Special  Sessions. 

It  is  to  be  hoped  that  legislation  may  be 
adopted  which  will  obviate  some  of  these  seri- 
ous objections  and  will  increase  in  some  ade- 
quate way  the  authority  of  the  police  magistrate's 
court.  The  city  does  not  get  from  that  court 
to-day  a  fraction  of  the  value  which  is  potential 
in  it.  To  develop  that  power  would  require 
the  expenditure  of  money  and  intelligence,  but 
it  would  be  money  and  mentality  w^ell  spent. 
The  police  judge,  for  example,  is  in  a  better 
position  to  check  the  lawlessness  and  corruption 
of  the  police  than  any  other  public  authority 
outside  the  Police  Department  itself.  The  magis- 
206 


POLICE  JUDGE   AND   PUBLIC 

trate  is  in  contact  with  the  policemen  through- 
out every  hour  of  the  court  day.  He  is,  or 
should  be,  in  a  position  to  know  more  about 
police  graft  and  oppression  than  any  other  pub- 
lic authority.  Acting  in  concert  with  the  police 
authorities,  he  can  be  of  incalculable  service  in 
the  reform  of  the  Police  Department,  and  in  the 
stamping  out  of  those  grave  faults  for  which  it 
has  become  notorious. 

We  have  statistics  of  labor  regarding  indus- 
trial accidents,  the  extent  of  unemployment,and 
other  matters  of  kindred  nature  on  which  public 
information  is  important.  Such  data  have  been 
found  useful  for  legislative  purposes  in  the  solu- 
tion of  our  pressing  industrial  problems.  Can 
there  be  any  doubt  that  adequate  statistics  of 
crime  would  serve  an  equally  useful  purpose  ? 
Criminality,  we  are  told,  tends  to  increase  in  our 
American  cities.  Why?  What  are  the  crimes 
which  tend  to  increase  ?  What  are  the  principal 
causes  ?  From  the  police  court,  with  properly 
kept  records,  this  information  could  be  obtained 
readily  and  put  to  good  uses.  Such  information 
is  of  fundamental  importance,  if  we  are  to  cope 
with  one  of  the  great  American  problems  — 
this  problem  of  the  increase  of  crime.  Under 
207 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  new  law  in  New  York  the  chief  justice  may- 
require  the  collection  by  the  magistrates  of  this 
statistical  material. 

The  magazine  press  for  the  past  few  years  has 
been  filled  with  articles  inveighing  against  the 
technicalities  which  defeat  justice  in  our  higher 
courts  and  by  which  guilty  men  have  escaped 
and  continue  to  escape  justice.  Conspicuous  and 
serious  as  is  this  general  defect  in  our  system  of 
criminal  justice,  however  earnestly  we  may  urge 
reform  in  that  system  at  the  top,  the  reform  which 
can  produce  the  greatest  and  most  far-reaching 
results  must  begin  at  the  bottom.  A  court  in 
which  annually  in  one  city  three  hundred  thou- 
sand persons  are  arraigned  on  charges  of  crime 
is,  from  this  point  of  view,  more  important  than 
the  New  York  Court  of  Appeals,  in  which  in 
the  same  time  perhaps  a  hundred  criminal  cases 
are  heard. 

We  are  making  the  first  rude  beginnings  of  a 
system  which  looks  to  the  reform,  as  well  as  to 
the  punishment,  of  the  offender.  With  the  suc- 
cess or  failure  of  this  new  institution  the  police 
judge  has  much  to  do.  If  he  performs  perfunc- 
torily the  function  allotted  to  him  by  the  pro- 
bation law,  if  his  interest  in  it  is  small,  if  the 
208 


POLICE   JUDGE   AND   PUBLIC 

law  itself  is  so  framed  as  to  leave  him  without 
necessary  authority  to  assist  in  its  operations,  the 
serious  criticisms  of  this  system  will  continue. 

That  there  is  much  yet  to  be  done  in  thus 
coordinating  the  work  of  the  police  magistrate 
with  that  of  the  forces  interested  in  the  reform  of 
the  offender,  a  recent  event  and  a  new  section 
of  the  law  both  bear  witness.  During  the  progress 
of  the  so-called  "  shirt-waist  strike  "  one  of  the 
New  York  City  magistrates,  who  has  been  on 
the  bench  for  years,  sentenced  a  number  of  little 
girls  to  the  workhouse  on  Blackwell's  Island 
for  disorderly  conduct  in  their  work  as  pickets 
in  this  strike.  The  propriety  of  these  sentences 
was  seriously  criticized  at  the  time,  and  some 
of  the  philanthropic  ladies  who  became  inter- 
ested on  the  side  of  the  strikers  visited  the 
island  to  see  what  the  conditions  and  associa- 
tions were  in  which  these  decent  working- 
girls  had  been  placed  by  the  magistrate's  action. 
A  report  of  what  they  saw  there  was  published 
in  the  daily  press.  Later,  in  passing  upon  the 
cases  of  other  young  girls  brought  before  him 
on  a  similar  charge,  the  magistrate  was  reported 
to  have  expressed  himself  as  shocked  at  these 
revelations  of  the  conditions  of  the  workhouse, 
209 


THE  OLD  LAW  AND  THE  NEW  ORDER 

and  to  have  stated  that  he  had  not  realized  what 
the  effect  of  his  sentence  had  been  or  the  moral 
dangers  to  which  he  had  exposed  these  girls. 
One  of  the  new  laws  which  has  resulted  from 
the  work  of  this  Commission  expressly  requires 
the  magistrates  once  a  year  to  visit  the  places  to 
which  they  commit  prisoners. 

Some  time  far  in  the  golden  future  students 
of  the  history  of  social  salvage,  delving  in  the 
musty  records  of  the  past  to  trace  the  slow 
upward  movement  through  which  American 
criminal  law  shall  have  developed  its  construct- 
ive power,  will  find  this  statute  and  tell  an  in- 
credulous public  that  there  was  a  time  long  ago 
when  the  welfare  of  the  criminal  and  the  con- 
dition in  which  he  was  restored  to  society  were 
considered  of  so  little  importance  that  such  a 
statute  was  found  necessary. 

We  need  somehow  to  get,  if  we  can,  a  dif- 
ferent attitude  toward  the  police  court.  Most 
of  us  have  read  so  many  stories  of  its  tragedies 
and  comedies  in  the  magazine  press  that  it  is 
hard  for  us  to  realize  that  it  is  a  court  and  not 
a  theatre.  It  is  a  vital  court,  its  effects  incalcula- 
bly far-reaching;  and  when  in  the  public  mind 
the  importance  of  prompt  and  efficient  justice 
210 


POLICE   JUDGE   AND   PUBLIC 

at  first  hand  becomes  of  primary,  rather  than  of 
secondary,  importance,  when  we  begin  to  realize 
that  respect  for  law  has  to  be  generated  first, 
and  especially  in  the  courts  where  the  people 
themselves  in  the  largest  numbers  come  in  direct 
contact  with  it,  —  when  we  realize  these  things, 
and  not  till  then,  will  the  police  court  in  our 
great  cities  become  what  it  should  be  —  a  court 
adequately  equipped,  decently  housed,  and  pre- 
sided over  only  by  judges  both  capable  and 
willing  to  perform  the  functions  imposed  upon 
a  highly  responsible  branch  of  the  judiciary. 
If  the  work  of  the  Commission  has  helped, 
even  in  a  small  degree,  to  bring  about  this 
needed  change  in  public  opinion,  it  will  have 
justified  its  existence.  We  are  in  the  era  of 
preventive  medicine.  It  is  time  that  we  arrived 
at  the  period  of  preventive  law. 


VIII 

Punishing  Corporations 


VIII 

Punishing  Corporations 

Within  the  past  few  years  numerous  fines 
have  been  imposed  by  Federal  judges  upon  rail- 
way and  other  corporations  for  violations  of  the 
Interstate  Commerce  Act  in  granting  or  receiv- 
ing rebates  forbidden  by  that  law.  The  Standard 
Oil  Company  of  Indiana  has  been  fined  twenty- 
nine  million  dollars.  Other  railway  companies 
have  been  fined  smaller  amounts, but  sums  suffi- 
cient to  cause  an  appreciative  effect  upon  divi- 
dend funds.  As  these  fines  have  been  imposed, 
protest  has  been  made  in  the  public  press  against 
the  policy  of  the  law  which  the  fines  express  — 
the  policy  of  punishing  the  corporation,  and 
thereby  in  effect  punishing  a  large  body  of  stock- 
holders innocent  of  any  personal  share  in  the 
offense  for  which  their  company  has  been  found 
guilty. 

The  critics  whom  these  fines  have  aroused  in- 
sist that  the  fines  are  unjust  and  that  the  law 
under  which  they  are  imposed  is  illogical  and 
wrong,  first,  because  it  punishes  the  innocent 
215 


THE  OLD  LAW  AND  THE  NEW  ORDER 

stockholder  by  making  him  suffer  financially  for 
the  criminal  conduct  of  the  officers  of  his  com- 
pany —  conduct  which  it  is  not  to  be  assumed 
he  has  ever  authorized  ;  and,  secondly,  because 
the  officers  whose  actions  result  in  these  killing 
decrees  often  go  unwhipped  by  the  law  against 
which  they  have  offended.  These  critics  demand 
a  complete  change  in  the  law,  a  change  by  which 
the  stockholder  shall  go  free  and  the  offending 
officer  alone  shall  be  punished. 

The  pathetic  figure  of  the  poor  widow  stock- 
holder is,  of  course,  familiar  to  our  lawmaking 
Solons.  However  much  her  rights  maybe  tram- 
pled on  or  disregarded  in  directors'  meetings, 
they  are  always  rehabilitated  and  revived  for  ac- 
tive service  when  legislative  action  seems  to 
threaten  the  interests  of  the  corporation  in  which, 
for  legislative  purposes  at  least,  she  has  her  small 
savings  of  a  lifetime  invested.  The  complaint 
against  the  punishing  of  corporations  comes  in 
part,  of  course,  from  the  fickle  and  uncertain 
friends  of  the  widowed  stockholder,  but  a  sub- 
stantial part  of  the  criticism  comes  from  sources 
less  open  to  suspicion  —  from  thoughtful  and 
disinterested  critics  who  insist  that  the  criminal 
law  should  find  its  mark  in  an  offending  person 
216 


PUNISHING   CORPORATIONS 

rather  than  in  an  unoffending  property,  and  who 
say  that  the  law  should  recognize  that  corpora- 
tions are  only  forms  and  fictions,  capable  of 
neither  good  nor  evil  except  through  the  indi- 
viduals who  act  through  and  under  them. 

They  say  that  by  creating  personal  responsi- 
bility of  these  individuals  for  criminal  acts  done 
by  them  as  corporate  officers,  and  by  punishing 
that  wrongdoing,  all  proper  reforms  in  corporate 
management  can  be  accomplished,  and  that  the 
punishment  of  the  fiction,  the  corporation  itself, 
is  undesirable  as  well  as  unnecessary  and  unjust. 

The  argument  from  innocence  —  the  argu- 
ment that  by  reason  of  the  stockholder's  own 
non-participation  in  the  wrongs  committed  by 
corporate  officers  in  his  behalf,  his  property,  the 
corporation,  should  go  free  —  is  not  a  new  one. 
Moreover,  it  has  not  proved  in  the  past  a  strong 
argument  before  the  courts.  It  has  often  been 
raised.  Twenty  years  ago,  in  a  memorable  liti- 
gation —  the  celebrated  Buffalo  case  —  this  de- 
fense was  pleaded  in  New  York  by  the  Standard 
Oil  Company.  It  was  charged  by  the  Lubricating 
Oil  Company  of  Buffalo  with  having  conspired  to 
ruin  that  company  by  circulating  falsehoods,  by 
representing  that  its  oil  was  of  inferior  quality, 
217 


THE  OLD  LAW  AND  THE  NEW  ORDER 

that  it  had  no  right  to  make  or  sell  it,  by  threat- 
ening its  customers  with  lawsuits  and  expenses 
if  they  continued  to  buy  its  oil,  by  asserting  that 
its  lubricating  oil  was  made  by  infringing  patents, 
and  that  all  who  bought  that  oil  would  be  sued 
for  such  infringements.  It  was  further  charged 
that  the  Standard  Oil  Company  of  New  York, 
and  other  allied  corporations  belonging  to  the 
Oil  Trust,  had  employed  a  certain  individual 
to  make  a  business  of  circulating  these  and  other 
alleged  slanders  among  the  Buffalo  company's 
customers  in  an  effort  to  ruin  it. 

Before  entering  upon  an  answer  to  these 
charges  which  placed  in  question  the  truth  of 
these  accusations,  the  Standard  Oil  Company 
urged  that  even  if  true  they  would  constitute 
no  basis  for  a  claim  against  the  Company  itself. 
It  said  in  effect :  — 

Assuming  these  charges  to  be  true,  you  still  are  not 
entitled  to  sue  us.  We  are  a  corporation,  and  our  in- 
nocent stockholders  are  not  responsible  for  slanders 
circulated  against  you  even  if  done  through  the  insti- 
gation of  our  officers.  It  is  against  the  law  to  circulate 
slanders,  and  corporate  officers  have  no  power  to  auth- 
orize for  the  stockholders  or  the  company  the  perform- 
ance of  such  illegal  acts.  Therefore  this  company  and 
its  stockholders  cannot  be  legally  bound  by  what  these 
218 


PUNISHING    CORPORATIONS 

officers  or  their  agents  illegally  have  done.  You  may 
sue  the  agent  who  circulated  the  slanders,  you  may 
sue  as  an  individual  any  officer  of  this  company  whom 
you  can  show  actually  to  have  employed  this  slanderer 
so  to  misconduct  himself,  but  the  corporation  must  go 
free.  Its  innocent  stockholders  have  been  guilty  of 
no  offense,  and  have  authorized  none  to  be  commit- 
ted in  their  behalf. 

What  the  practical  consequence  of  this  plea 
would  be  is,  of  course,  apparent.  The  argument 
for  personal  as  opposed  to  corporate  responsi- 
bility for  wrongdoing  could  not  be  more  skill- 
fully advanced  than  it  was  in  this  case,  but  the 
argument  failed.  The  Court  declared  that  while 
the  alleged  agent  would  be  legally  responsible 
personally  for  his  conduct,  if  it  should  appear 
that  he  had  been  employed  for  the  purposes 
charged  the  corporation  would  be  responsible 
as  well,  under  the  old  general  rule  that  "  for 
the  acts  of  a  servant  within  the  general  scope  of 
his  employment  while  engaged  in  his  master's 
business,  and  done  with  a  view  to  the  furtherance 
of  that  business  and  the  master's  interests,  the 
master  will  be  responsible,  whether  the  act  be 
done  negligently,  wantonly,  or  even  willfully." 

There  is  great  justice  and  fairness  in  this  rule  [says 
the  Court],  otherwise  injustice  might  be  done  to  indi- 
219 


THE  OLD  LAW  AND  THE  NEW  ORDER 

viduals  if  their  remedy  for  wrongs  authorized  by  cor- 
porations were  to  be  confined  to  actions  against  the 
agents  employed  by  the  corporation.  Since  in  these 
times  a  vast  portion  of  the  business  of  the  country  is 
carried  on  by  corporations  guided  and  stimulated  in 
their  action  by  the  advice  and  under  the  direction  of 
shareholders  who  desire  to  make  their  investment 
profitable,  this  rule  should  not  be  narrowed  or  limited 
in  any  degree  by  the  decisions  of  the  Court. 

There  has  been  little  tendency  among  the 
courts,  in  the  thirty  years  which  have  elapsed 
since  this  decision  was  made,  to  restrict  or  create 
exceptions  to  the  rule  quoted.  On  the  contrary, 
the  wisdom  of  extending  its  principle  has  been 
recognized,  in  civil  as  well  as  in  criminal  pro- 
ceedings. 

For  example,  years  ago  one  of  what  the 
lawyers  call  "leading  cases"  on  corporate  re- 
sponsibility was  a  decision  which  declared  that 
a  street  railway  company  was  not  liable  for  an 
assault  committed  in  a  fit  of  anger  by  a  horse- 
car  driver  upon  a  female  passenger  by  throwing 
her  from  a  moving  car.  The  decision  is  no  longer 
law,  and  under  contemporary  decisions  railway 
companies  have  been  held  responsible  in  damages 
not  only  for  such  assaults,  but  even  for  insulting 
language  used  by  employees  to  passengers  on 
220 


PUNISHING   CORPORATIONS 

the  company's  cars.  No  one  can  question  the 
public  benefit  which  must  flow  from  this  increase 
of  responsibility.  The  theory  which  would  hold 
only  the  offending  person  responsible  for  such 
acts  would  find  itself  practically  nullified  by  the 
financial  irresponsibility  of  the  person  whose 
individual  conduct  is  involved.  Theuselessness 
of  suing  an  abusive  or  violent  car-driver  is  of 
course  apparent.  Putting  the  fellow  in  jail 
might  be  some  satisfaction  to  the  injured  citi- 
zen, but  this  remedy  would  still  be  inadequate 
as  an  incentive  to  induce  the  corporation  to 
prevent  a  repetition  of  similar  offenses  by  other 
employees. 

Much  more  satisfactory  results  have  been  and 
are  obtained  by  creating  a  legal  responsibility 
which  for  very  practical  financial  reasons  makes 
the  corporate  employer  solicitous  of  the  equable 
temper  and  general  character  of  the  men  it  hires 
to  serve  in  its  public  conveyances.  It  is  doubt- 
less true  that  the  stockholders  of  street  railway 
companies  who  through  their  chosen  officers  have 
hired  a  car  conductor  have  presumably  not  hired 
him  to  assault  or  abuse  passengers,  any  more 
than  the  stockholders  of  steam  railway  compan- 
ies are  to  be  presumed  directly  to  have  author- 
221 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ized  or  enjoined  their  officers  to  break  the  law  by 
giving  illegal  rebates  to  shippers.  The  purpose 
of  the  law,  however,  is  to  lay  down  not  abstract 
but  enforcible  rules  of  conduct,  and  the  judicial 
reasoning  which  involves  the  corporation  in  re- 
sponsibility for  the  acts  of  the  agent  seems  as 
applicable  in  one  case  as  in  the  other. 

It  may  be  urged  that  this  argument  does  not 
afford  a  complete  answer  to  the  objections  to 
punishing  corporations.  It  may  be  said  that, 
even  conceding  in  sundry  instances  that  it  has 
been  found  advantageous  in  civil  cases  to  hold 
corporations  responsible  for  wrongs  done  by  their 
agents,  after  all  this  is  a  rule  of  hard  practical 
necessity,  of  public  policy  rather  than  of  justice. 
There  are,  for  example,  those  to  whom  the  legal 
maxim  of  respondeat  superior  —  the  rule  which 
makes  the  employer  responsible  for  wrongs  done 
by  his  agent  —  is  a  rule  not  of  morality  but  of 
law.  As  the  president  of  a  New  York  corpora- 
tion employing  a  large  number  of  delivery  wa- 
gons expressed  this  thought:  — 

The  law  says  we  are  responsible  for  damages  done 
by  our  drivers  in  carelessly  running  over  people.  Now, 
we  are  as  careful  in  selecting  our  drivers  as  we  can  be. 
I  think  when  we  have  done  that,  we  have  fulfilled  our 

222 


PUNISHING    CORPORATIONS 

entire  moral  responsibility.  If  the  driver  is  careless  and 
runs  over  some  one,  I  think  we  are  only  legally  and 
not  morally  responsible,  and  if  I  can  get  out  of  that 
responsibility  in  any  decent  fashion  and  protect  my 
stockholders  from  being  mulcted  in  damage  suits,  I 
think  I  am  justified  in  trying  to  do  it. 

This  attitude  towards  corporate  responsibil- 
ity and  more  especially  towards  corporate  crime 
of  the  kind  here  considered  overlooks  its  essen- 
tial character.  The  type  of  offense  for  which  cor- 
porations are  properly  punishable  as  corporations 
is  not  personal  in  its  essence  at  all.  Such  offenses 
are  committed  by  individuals,  to  be  sure,  but  not 
to  secure  individual  or  personal  advantages,  but 
solely  to  secure  impersonal  and  corporate  bene- 
fits. The  thing  aimed  at  by  the  Interstate  Com- 
merce Law  and  other  similarly  framed  statutes 
is  essentially  corporate  wrong  doings  —  criminal 
profits  or  criminal  economies.  Here  is  a  railway 
company,  for  example,  giving  rebates.  These  re- 
bates are  given  by  agents  or  officers  who  are  acting 
for  the  supposed  benefit  of  the  railway  company 
in  increasing  its  business  with  large  shippers,  or 
in  inducing  shippers  to  give  traffic  which  would 
otherwise  be  diverted  to  competing  lines.  The 
officer  derives  no  personal  advantage  from  the 
223 


THE  OLD  LAW  AND  THE  NEW  ORDER 

rebate.  If  by  his  conduct  the  railway  receives  a 
benefit,  it  is  a  corporate  advantage  and  redounds 
to  the  profitof  the  stockholders.  If,  however,  the 
illegal  conduct  is  discovered  by  the  officers  of  the 
law,  who  should  be  punished?  The  answer  given 
by  those  who  disbelieve  in  punishing  corpora- 
tions is  this :  "  Punish  the  traffic  manager,  put 
him  in  prison  when  his  wrongdoing  is  detected, 
and  through  fear  of  like  punishment  his  asso- 
ciates or  his  successors  will  desist  from  their  evil 
doing."     i 

From  the  standpoint  of  the  stockholder  this  is 
indeed  a  comforting  doctrine.  Under  it  the  risks 
and  penalties  are  all  for  the  offending  railway 
officers.  The  profits  from  the  misconduct  of 
those  officers  are  all  for  the  corporation  itself  and 
its  stockholders. 

The  trouble  with  this  doctrine  is  that  it  seems 
to  ignore  everything  essential  to  the  offense 
which  the  law  wishes  to  stamp  out.  Rebating  ex- 
isted because  it  was,  or  at  least  was  deemed  to  be, 
a  profitable  thing  for  the  railway.  If  the  practice 
becomes  over-hazardous  by  reason  of  law  aimed, 
not  at  some  unessential  agent,  but  at  the  profit 
itself,  the  rebating  will  stop.  The  indignation  of 
stockholders  at  the  heavy  fines  which  in  recent 
224 


PUNISHING   CORPORATIONS 

years  have  been  imposed  upon  railways  guilty  of 
frauds  on  fair  trade  has  found  vent  not  only  in 
loud  outcries  against  the  raiders  of  their  prosper- 
ity in  the  Federal  Department  of  Justice,  but 
against  the  corporate  officers  and  directors  whose 
conduct  has  produced  these  calamities. 

The  circular  letters  to  stockholders  which  the 
presidents  of  these  railway  culprits  have  seen  fit 
to  send  out  to  mitigate  the  indignation  of  their 
stockholders  are  distinctly  healthy  signs.  These 
circulars  berate  the  Federal  Department  of  Just- 
ice and  the  Federal  courts  in  good  round  terms, 
and  assure  the  stockholders  that  the  convictions 
and  the  fines  imposed  resulted  from  hair-split- 
ting technicalities  or  abuse  of  power.  Whether 
these  explanations  really  succeed  in  explaining, 
whether  the  stockholders  are  fully  convinced 
that  the  enforcement  of  law  is  properly  described 
as  a  raid  on  prosperity,  is,  so  far  as  the  public 
is  concerned,  comparatively  unimportant.  The 
stockholders  are  at  least  agreed  on  one  thing; 
that  is,  that  they  want  no  more  fines  and  they 
want  their  officers  so  to  direct  railway  business 
that  there  shall  be  no  more  fines.  By  these  much- 
discussed  legal  proceedings,  what  for  lack  of  a 
better  term  may  be  called  the  moral  influence 
225 


THE  OLD  LAW  AND  THE  NEW  ORDER 

of  the  stockholder  has  been  aroused  against  the 
rebate. 

What  has  been  said  here  about  the  rebate 
fines  is  of  course  by  way  of  illustration  merely 
in  the  discussion  of  a  principle.  The  policy  of 
punishing  corporate  bodies  for  corporate  wrong- 
doing is  based  upon  the  recognition  of  the  fact 
that  under  modern  conditions  there  may  be  im- 
personal and  corporate  crime  which  is  best  at- 
tacked by  an  assault  upon  the  underlying  mo- 
tive for  which  the  offense  is  committed.  If  an 
illegal  corporate  profit  is  made  extra-hazardous, 
it  will  be  abandoned  because  good  business  re- 
quires it.  If  an  economy,  for  example,  in  con- 
struction and  maintenance  or  in  operation  con- 
sists in  a  failure  to  take  decent  precautions  for 
the  safety  and  comfort  of  the  traveling  public 
or  for  employees,  and  this  economy  is  rendered 
of  doubtful  value  because  of  the  reasonable  pros- 
pect of  a  substantial  money  penalty,  the  economy 
will  be  abandoned.  If,  however,  that  penalty  be 
slight  or  the  prospect  of  its  infliction  be  remote, 
the  illegal  economy  will  continue. 

The  workings  of  the  Free  Transfer  Law  in 
New  York  afford  an  illustration  on  this  point. 
The  law  required  the  issuance,  by  the  great 
226 


PUNISHING   CORPORATIONS 

street  railway  system  of  that  city,  of  countless 
thousands  of  free  transfers  from  one  line  to  an- 
other at  points  of  intersection.  The  company 
refused  to  obey  it  at  many  of  these  intersections. 
The  law  provided  a  penalty  of  fifty  dollars  for 
each  refusal,  recoverable  by  the  person  to  whom 
the  transfer  was  refused.  Many  suits  resulted. 
A  class  of  lawyers  conceived  the  idea  of  bringing 
these  suits  by  wholesale.  Their  "clients"  were 
instigated  to  travel  daily  in  blocks  of  five  on 
these  cars ;  to  demand  the  transfers  where  the 
law  required  them  to  be  issued  ;  and  on  being 
refused,  subsequently  to  bring  suit  for  the  lump 
amount  of  penalties  which  the  law  afforded  for 
these  refusals. 

By  a  construction  of  the  statute  to  which  is 
given  a  meaning  quite  different  from  its  appar- 
ently plain  wording,  the  Court  of  Appeals  put 
a  stumbling-block  in  the  way  of  this  highly  ques- 
tionable form  of  activity  on  the  part  of  the  local 
bar,  and  reduced  their  business  from  a  prosper- 
ous wholesale  to  a  meagre  retail  trade.  The  rail- 
way company,  encouraged  by  the  decision,  con- 
tinued, where  it  chose,  to  break  the  law  and  to 
refuse  the  transfers.  It  found  it  more  profitable 
to  collect  innumerable  illegal  nickels  from  the 
227 


THE  OLD  LAW  AND  THE  NEW  ORDER 

traveling  public  and  to  pay  an  occasional  litigant 
the  penalty  which  the  statute  provided.  The  law 
had  failed  to  make  an  illegal  profit  uneconom- 
ical. If,  however,  the  Court  had  been  able  suffi- 
ciently to  overcome  its  disgust  at  the  very  ques- 
tionable business  methods  of  the  professional 
transfer  travelers  so  as  to  decide  the  test  case 
in  their  favor,  the  railway  would  have  found  it 
cheaper  to  obey  the  law,  and  the  public  would 
have  profited  accordingly. 

Those  who  now  are  urging  the  punishment 
solely  of  persons  for  what  are  really  corporate 
offenses  seem  to  overlook  not  only  the  essen- 
tial nature  of  the  offense,  but  certain  practical 
as  well  as  ethical  difficulties  in  their  position. 
One  is  the  great  difficulty  for  outsiders  to  locate 
in  the  network  of  corporate  management  the 
offending  person  who  should  feel  the  whip  of 
the  law.  Oftentimes  responsibility  seems  to  be 
divided  into  infinitesimal  segments  in  the  oper- 
ation of  a  corporation,  so  that  the  indictment 
for  wrongdoing  of  one  man  for  the  conduct  of 
a  great  business  system  seems  monstrous.  Be- 
fore we  can  hope  to  find  the  individual  respon- 
sible for  corporate  criminality  we  must  have  a 
reorganization  of  corporation  law  which  shall 
228 


PUNISHING   CORPORATIONS 

enable  us  more  clearly  to  locate  the  actually 
responsible  person.  It  seems  rather  a  cowardly 
method  of  reforming  corporate  abuses  simply 
to  add  to  the  legal  responsibility  of  minor  offi- 
cials and  employees  in  the  service  of  these  or- 
ganizations, and  to  expect  to  make  corporations 
honest  by  the  terrors  of  jail  thrust  before  office 
managers  and  bookkeepers.  It  is  not  necessary 
or  proper,  on  the  other  hand,  that  these  indi- 
viduals should  be  relieved  of  all  responsibility. 
But  to  place  the  whole  burden  on  their  shoul- 
ders is  surely  indefensible.  To  fill  the  jail  with 
these  subordinates  can  accomplish  no  real  re- 
form, for  that  reform  must  begin  at  the  top  and 
not  at  the  bottom. 

Some  years  ago,  a  nervous,  middle-aged  gen- 
tleman, who  was  a  heavy  stockholder  in  a  great 
railway  system,  was  traveling  on  it  from  New 
York  to  Chicago.  At  one  of  the  stops  which 
his  train  made,  he  left  his  coach,  sought  the  en- 
gine cab,  and  in  a  very  vehement  fashion  took 
the  engineer  to  task  for  violation  of  rules.  "  Since 
our  last  stop,"  he  said,  "you  have  passed  at  full 
speed  three  signals  where  the  rules  require  you 
to  slow  down.  Don't  you  know,  sir,  that  if  we 
had  met  with  an  accident,  and  you  were  not 
229 


THE  OLD  LAW  AND  THE  NEW  ORDER 

killed  yourself,  you  would  probably  be  sent  to 
jail  for  manslaughter  ?  "  The  engineer  took  the 
scolding  calmly.  "  You  missed  one,"  he  said. 
"There  were  four  of  those  slow-down  signals. 
I  mind  them  when  I  can,  but  this  time  I  am 
late.  You  talk  about  the  rules.  Why,  if  I  slowed 
down  at  all  these  signals,  it  would  take  twelve 
hours  more  to  get  to  Chicago,  and  I  might  be 
discharged  as  soon  as  I  got  there.  In  my  job 
there  is  only  one  real  rule,  and  that  is  to  keep 
the  running  time.  You  are  right,  though,"  he 
added  grimly,  "about  my  going  to  jail  for  man- 
slaughter. That's  what  the  slow-down  signals 
are  for  —  to  put  it  up  to  me  in  case  anything 
happens.  Jail  chances  are  part  of  my  job." 

To  increase  indefinitely  the  number  of  jail 
chances  which  shall  be  part  of  the  job  of  em- 
ployees and  agents  of  corporations  is  far  from 
an  attractive  proposition  to  fair-minded  men 
when  its  real  character  is  understood.  It  is  only 
just  to  assume  that  those  who  advocate  jail  sen- 
tences as  a  cure  for  the  criminal  conduct  of  cor- 
porate affairs  mean  that  the  individual  culprits 
shall  not  be  catspaws,  not  minor  officers,  clerks, 
and  employees,  but  the  dominating  and  direct- 
ing men  inside.  This  programme  pleases  the 
230 


PUNISHING   CORPORATIONS 

ear,  but  it  is  really,  under  present  conditions, 
no  practical  programme  at  all.  American  cor- 
poration law  has  not  yet  been  formulated  with 
any  clear  purpose  of  fixing  and  localizing  cor- 
porate responsibility,  but  rather  of  dissipating 
or  concealing  it.  The  perennial  problem  of  the 
farmer  at  the  fair  —  that  of  selecting  from  the 
three  shells  the  one  containing  the  little  pea  —  is 
in  miniature  the  problem  of  the  police  power 
of  the  State  in  the  presence  of  corporate  wrong- 
doing. The  State  is  the  puzzled  farmer  con- 
fronting not  three  but  a  myriad  of  shells;  and, 
carrying  the  analogy  a  little  further,  it  seems 
strange  that  so  few  of  the  friends  who  advise  the 
farmer  to  seize  boldly  the  vanishing  pea,  ignor- 
ing the  embarrassment  created  by  the  shells, 
have  had  so  little  to  say  about  the  advantage 
of  having  less  opacity  in  the  shells  themselves. 
Punishing  individuals  for  corporate  offenses 
against  the  public  will  remain  a  doubtful  and 
uncertain  expedient  until  corporation  laws  have 
been  remodeled.  That  work  has  not  yet  fairly 
begun.  Criticism  of  existing  corporation  statutes 
is  still  regarded  in  conservative  quarters  as  syn- 
onymous with  attacks  on  property  and  on  pros- 
perity. 

231 


THE  OLD  LAW  AND  THE  NEW  ORDER 

What  has  been  said  in  favor  of  the  principle 
of  punishing  corporate  bodies  does  not  involve 
a  defense  of  all  the  absurd  travesties  upon  that 
principle  embodied  in  statutory  enactments  of 
State  legislation  in  the  past  few  years.  It  is  not 
necessary  to  disagree  with  those  who  find  in 
many  of  these  anti-railway  and  anti-corporation 
statutes  a  disheartening  and  disgusting  spectacle 
of  self-destroying  demagogy.  It  is  doubtless  true 
that  a  good  part  of  the  more  conspicuous  recent 
State  railway  legislation  seems  to  proceed  upon 
the  theory  that  a  railway  is  essentially  a  public 
enemy  and  an  outlaw,  having  no  rights  or  prop- 
erty entitled  to  constitutional  protection  through 
the  courts.  But  the  fact  that  these  and  many 
other  anti-corporation  laws  impose  grossly  ex- 
cessive, unnecessary,  and  unreasonable  fines 
upon  corporate  bodies,  and  that  the  principle 
of  punishing  corporations  for  corporate  offenses 
is  a  dangerous  weapon  in  the  hands  of  the  leg- 
islative charlatan  and  the  demagogue,  falls  far 
short  as  an  argument,  and  fails  to  offer  conclu- 
sive proof  of  the  essential  fallacy  of  that  princi- 
ple. It  is  no  argument  against  medicine  that 
quack  doctors  give  it  in  overdoses. 

The  scope  of  this  remedy  may  not  be  as  broad 
232 


PUNISHING   CORPORATIONS 

as  the  whole  field  of  corporate  offenses.  It  is  not 
to  be  claimed  that  corporate  bodies  should  be 
punished  in  every  instance  for  every  offense  com- 
mitted against  the  public  by  officers  or  employees 
acting  in  their  behalf.  The  argument  which  is 
here  offered  is  simply  an  attempt  to  meet  the  crit- 
icisms of  those  who  allege  that  the  principle  of 
punishing  the  corporation  has  no  just  basis  what- 
ever, and  is  essentially  and  in  all  respects  wrong. 
It  is  not  necessary  to  insist  that  the  remedy  for 
misconduct  of  corporate  officials  should  in  all 
cases  be  the  use  of  the  rod  upon  the  corporation 
itself.  It  may,  indeed,  be  the  part  of  wisdom  in 
many  cases  to  mete  out  substantial  punishment 
to  the  official  as  well  as  to  the  company  in  whose 
interest  he  misconducts  himself.  The  whole 
point  is  that  the  principle  of  punishing  corpora- 
tions has,  under  present  conditions  at  least,  the 
right  to  live. 

It  may  be  that,  considered  as  a  policy,  it  is 
not  a  permanent  but  a  transitional  one.  It  may 
be  that,  by  the  reorganization  of  American  cor- 
poration law,  individual  responsibility  for  cor- 
porate conduct  may  be  made  clearer  and  better 
defined,  and  the  connection  of  the  real  owners 
of  corporate  property  with  its  actual  management 
233 


THE  OLD  LAW  AND  THE  NEW  ORDER 

shall  be  made  less  capable  of  concealment,  and 
a  practical  method  thereby  afforded  to  stock- 
holders of  obtaining  from  them  reimbursement 
to  the  corporate  treasury  for  fines  and  penalties 
which  in  the  first  instance  the  corporation  has 
been  compelled  to  pay  for  official  malfeasance. 
When  such  reforms  have  been  made,  we  may 
then  consider  the  advisability  of  making  the 
offending  individuals  alone  responsible  for  cor- 
porate misconduct,  and  of  abolishing  the  respon- 
sibility of  the  corporation  itself.  In  the  mean 
time,  however,  no  single  influence,  where  strong 
influences  are  most  needed,  is  likely  to  have 
greater  cogency  in  urging  on  that  reform  in  cor- 
porate organization  than  the  one  here  considered. 
Until  that  reform  has  taken  place  the  principle 
of  punishing  corporations  will  have  its  legitimate 
place  in  the  armory  of  the  law. 


IX 

The  Law  and  Industrial  Inequality 


IX 

The  Law  and  Industrial  Inequality  ' 

Has  the  State  ever  a  clear  duty  to  lend  a 
hand  to  aid  those  who  are  obviously  at  a  disad- 
vantage in  struggling  with  the  forces  of  modern 
industry  ?  Under  our  fundamental  law  and  the 
principles  declared  in  our  Constitution,  can  our 
legislatures  and  courts  recognize  not  only  the 
facts  of  existing  industrial  inequality  between 
men,  but  a  duty  to  protect  by  law  framed  to 
meet  new  conditions  the  weaker  against  the 
stronger  ?  When  individual  action  alone  cannot 
secure  equalization  of  the  conditions  of  compe- 
tition, and  where  that  failure  is  resulting  in 
misery  and  distress,  may  the  law  intervene 
to  protect  the  weak  from  the  tyranny  of  the 
strong?  Are  the  handicaps  of  life  to  be  ques- 
tions solely  for  the  individual,  or  are  they  at 
times  and  under  special  circumstances  to  be 
questions  for  the  State  itself  to  grapple  with, 
and  if  not  to  solve,  at  least  to  create  condi- 

'  A  paper  read  before  the  New  York  State  Bar  Association 
at  its  Annual  Meeting  in  1906. 

237 


THE  OLD  LAW  AND  THE  NEW  ORDER 

tions  under  which  the  individual  may  solve 
them  for  himself? 

These  are  difficult  questions  which  our  courts 
with  increasing  frequency  are  being  asked  to 
answer  when  required  to  determine  the  validity 
of  laws  which  our  legislatures  and  Congress  are 
yearly  enacting;  laws  regulating  or  fixing  the 
conditions  under  which  industry  shall  be  carried 
on ;  limiting  the  hours  of  labor  of  women  and 
children,  and  men  as  well,  in  over-competitive 
employments  ;  laws  aimed  to  reduce  unnecessary 
dangers  to  life  and  limb  in  dangerous  trades  or 
dangers  to  health  in  unhealthful  occupations; 
laws  which,  by  increasing  the  employer's  re- 
sponsibility, seek  to  urge  him  to  new  diligence 
in  the  protection  of  his  employees  ;  laws  which 
in  a  multitude  of  ways  aim  to  control  or  regu- 
late as  special  necessity  may  dictate  the  processes 
of  industry,  to  remove  conditions  which  press 
too  heavily  upon  the  overburdened,  and  which, 
uncontrolled,  sap  vitality  and  destroyer  shorten 
life. 

The  general  problem  which  these  questions 
raise  and  which  involves  both  the  power  and  the 
duty  of  the  State  would  seem  to  have  been  an- 
swered, in  all  the  great  civilized  countries  of  the 
238 


INDUSTRIAL   INEQUALITY 

world  but  ours,  in  the  affirmative.  Many  of  these 
questions  were  settled  in  European  countries 
long  ago.  Economic  conditions  which  gave  them 
urgency  earlier  in  the  Old  World  have  more  re- 
cently come  to  us  and  the  form  of  the  problem 
which  these  new  conditions  have  raised  as  it  is 
presented  to  our  country  is  —  How  far  may  the 
legislatures  go  in  enacting  laws  aimed  at  condi- 
tions of  industrial  inequality  under  the  limita- 
tions of  the  law  of  the  land  ? 

Our  fundamental  law  has  for  one  of  its  prin- 
ciples that  of  equality  —  that  before  the  law, 
men  are  equal  in  rights,  privileges,  and  legal  ca- 
pacities. It  has  for  another  principle,  individual 
freedom,  the  right  of  the  individual,  uncon- 
trolled by  any  arbitrary  trammels  of  the  State, 
to  pursue  any  proper  calling  and  to  contract 
with  others  in  relation  to  that  calling.  The  lib- 
erty to  pursue  such  calling  is  a  property  right, 
is  a  part  of  the  liberty  and  property  which  shall 
not  be  taken  away  without  due  process  of 
law. 

History  would  seem  to  show  that  for  the  first 

seventy-five  years  at  least  of  our  national  life 

individual  liberty  was  the  dominant  note.  We 

were  opening  a  new  world.   In  it  there  were  ap- 

239 


THE  OLD  LAW  AND  THE  NEW  ORDER 

parently  innumerable  opportunities  for  individ- 
ual enterprise  and  initiative.  Our  national  life 
began,  moreover,  with  greater  industrial  equality 
than  had  before  existed  in  any  other  country. 
The  industrial  revolution  had  not  yet  begun 
when  American  independence  was  declared.  We 
were  then  an  agricultural  people,  for  England, 
hoping  to  keep  us  a  market  for  her  manufac- 
tures, had  forbidden  the  export  of  machinery  to 
her  colonies.  The  spinning  machinery  of  Ark- 
wright  was  not  brought  to  us  until  after  the  war. 
The  power  loom  was  not  invented  until  1785. 
There  was  not  a  factory  in  the  United  States 
when  the  Constitution  was  adopted.  The  arti- 
san was  his  own  master  and  worked  with  his 
own  tools  or  on  simple  machinery  which  by  mod- 
erate savings  he  himself  might  own.  There  were 
no  great  fortunes  in  the  modern  sense,  no  great 
corporate  organizations  of  wealth,  no  factory 
system.  Is  it  to  be  wondered  at,  that,  beginning 
thus  with  such  a  marked  general  condition  of 
industrial  independence  amid  a  wealth  of  natu- 
ral opportunities  for  personal  success,  our  law 
should  for  so  long  have  kept  dominant  the  idea 
of  individual  personal  freedom  ?  Is  it  strange 
that,  in  the  pursuit  of  individual  fortune,  the  in- 
240 


INDUSTRIAL   INEQUALITY 

terests  of  the  State  were  often  neglected,  or  that 
opportunities  for  unjust  advantage  conferred  by 
unjust  law  on  the  few,  or  seized  by  them  in  spite 
of  law,  failed  to  receive  general  public  interest 
among  citizens  too  much  absorbed  in  their  own 
personal  affairs  to  be  aroused  by  the  abuse  of 
the  powers  of  the  State? 

With  the  passage  of  time,  however,  with  the 
industrial  changes  which  have  made  an  agri- 
cultural colony  a  power  in  the  markets  of 
the  world,  have  come  changes  in  our  attitude 
towards  the  law,  changes  produced  largely  by 
economic  variations.  The  modern  note  is  not 
simply  individual  freedom  ;  it  is  social  freedom  ; 
not  freedom  from  law,  but  freedom  by  law  — 
and  in  that  freedom  equality  of  opportunity. 
Along  with  the  tardy  legislation  which  aims 
through  law  to  repair  the  oversights  and  blun- 
ders of  the  past  and  restore,  so  far  as  may  be, 
that  equality  of  opportunity,  which  seeks  to  take 
away  privilege  and  unjust  enrichment,  to  pre- 
vent transportation  discriminations  and  to  re- 
duce the  advantages  in  competition  of  fraud 
over  honesty,  comes  legislation  of  another  kind 
which  aims  at  the  industrial  welfare  of  the  many 
by  limiting  the  individual  freedom  of  the  few  ; 
241 


THE  OLD  LAW  AND  THE  NEW  ORDER 

by  imposing  new  duties  on  the  strong  for  the 
protection  of  the  weak. 

The  greater  part  of  this  protective  legislation 
must  find  its  justification,  if  at  all,  before  the 
courts,  through  the  police  power.  The  old  theory 
of  legal  equality,  based  upon  the  existence  of 
industrial  equality,  finds  itself  in  conflict  with 
the  facts  of  life.  Unless  the  State  must  admit 
itself  powerless  to  deal  with  new  conditions  of 
modern  society,  authority  must  be  found  in  the 
police  power  to  meet  their  demands  for  law. 
The  constant  expansion  of  that  power  in  the 
last  fifteen  years,  as  expressed  in  legislative  en- 
actments and  in  the  increased  bulk  of  decisions 
sustaining  these  enactments,  seems  to  indicate 
an  almost  conscious  purpose  of  society,  con- 
strained by  its  own  necessities,  to  limit  the 
range  of  individual  freedom.  This  growth  of 
the  police  power  is  one  of  the  marked  features 
of  modern  American  law. 

It  is  with  great  wisdom  that  the  courts  have 
refrained  from  defining  the  police  power,  lest  it 
crystallize  by  definition  and  lose  its  capacity  to 
expand.  In  it  is  contained  the  reserved  right 
of  the  State  to  preserve  its  own  growth,  to  make 
provisions  for  new  conditions  as  they  appear. 
242 


INDUSTRIAL   INEQUALITY 

It  is  the  law  which  must  find  its  authority  in  the 
needs  of  the  present  and  not  solely  in  the  tra- 
ditions of  the  past.  It  is  because  that  law  is  so 
obviously  in  a  state  of  evolution  that  the  courts 
have  refused  to  say  where  the  constitutional 
boundaries  limiting  its  exercise  are  to  be  fixed. 
As  a  part  of  the  expansion  of  the  police  power 
the  courts  have  declared  in  a  number  of  cases 
the  right  of  the  legislature  to  enact  laws  not 
only  for  health,  safety,  or  morals  of  the  general 
public,  but  for  the  protection  of  individuals 
whose  condition  gives  them  special  need  of  legal 
protection  or  whose  individual  freedom  has  lost 
in  a  measure  its  reality  through  economic  pres- 
sure. Industrial  inequality  is  being  recognized 
as  a  justification  for  the  exercise  of  the  police 
power  in  aid  of  the  health,  safety,  and  well-being 
of  citizens  suffering  from  its  burden.  In  Holden 
v.  Hardy,  169  U.  S.  366,  the  case  in  which  the 
United  States  Supreme  Court  upheld  the  con- 
stitutionality of  the  Utah  Eight-Hour  Law  for 
underground  miners,  the  Court,  after  consider- 
ing at  some  length  the  conditions  injurious  to 
the  health  in  the  miner's  occupation,  observes :  — 

The  legislature  has  also  recognized  the  fact,  which 
the  experience  of  legislatures  in  many  States  has  cor- 

243 


THE  OLD  LAW  AND  THE  NEW  ORDER 

roborated,  that  the  proprietors  of  these  establishments 
and  their  operators  do  not  stand  upon  an  equality,  and 
that  their  interests  are,  to  a  certain  extent,  conflicting. 
The  former  naturally  desire  to  obtain  as  much  labor 
as  possible  from  their  employees,  while  the  latter  are 
often  induced  by  fear  of  discharge  to  conform  to  regu- 
lations which  their  judgment,  fairly  exercised,  would 
pronounce  to  be  detrimental  to  their  health  or  strength  •, 
in  other  words,  the  proprietors  lay  down  the  rules  and 
the  laborers  are  practically  constrained  to  obey  them. 
In  such  cases  self-interest  is  often  an  unsafe  guide  and 
the  legislature  may  properly  interpose  its  authority. 
.  .  .  The  fact  that  both  parties  are  of  full  age  and 
competent  to  contract  does  not  necessarily  deprive  the 
State  of  the  power  to  interfere  where  the  parties  do 
not  stand  upon  an  equality  or  where  the  public  health 
demands  that  one  party  to  the  contract  shall  be  pro- 
tected against  himself.  The  State  still  retains  an  inter- 
est in  his  welfare,  however  reckless  he  may  be.  The 
whole  is  no  greater  than  the  sum  of  all  the  parts,  and 
where  the  individual  health,  safety,  and  welfare  are  sac- 
rificed or  neglected,  the  State  must  suffer. 

The  same  Court  more  recently  in  Knoxville 
Iron  Company  v.  Harbison,  183  U.  S.  13,  was 
called  upon  to  test  the  validity  under  the  Four- 
teenth Amendment  of  an  Act  of  Tennessee  re- 
quiring the  redemption  in  cash  of  store  orders 
or  other  evidences  of  indebtedness  issued  by 
employers  in  payment  of  wages  due  employees. 
244 


INDUSTRIAL   INEQUALITY 

In  upholding  the  law  the  Court  quoted  with  ap- 
proval the  decision  of  the  Supreme  Court  of 
Tennessee :  — 

The  legislature  evidently  deemed  the  laborer  at  some 
disadvantage  under  existing  laws  and  customs,  and  by 
this  act  undertook  to  ameliorate  his  condition  in  some 
measure  by  enabling  him  or  his  bona  fide  transferee  at 
his  election,  and  at  a  proper  time,  to  demand  and  re- 
ceive his  unpaid  wages  in  money  rather  than  in  some- 
thing less  valuable.  Its  tendency,  though  slight  it  may 
be,  is  to  place  the  employer  and  employee  upon  equal 
ground  in  the  matter  of  wages,  and  so  far  as  calculated 
to  accomplish  that  end  deserves  commendation. 

How  great  the  industrial  inequality  must  be, 
how  far  the  worker  must  be  unable  to  protect 
himself  to  justify  police  legislation  for  his  bet- 
terment, are  still  open  questions.  But  the  courts 
have  declared  that  the  State  may  act  to  protect 
women  and  children  against  excessive  labor ; r 
that  it  may  provide  regulations  for  greater  safety 
and  comfort  of  factory  and  railway  employees;* 
that  it  may  change  the  common  law  and  take 
away  defenses  in  actions  for  personal  injuries 

1  Wenham  <v.  State,  65  Neb.  394,  91  N.  W.  421;  Com- 
monwealth <v.  Hamilton  Mfg.  Co.,  120  Mass.  383;  State  <v. 
Buchanan,  29  Wash.  602. 

1  People  <v.  Smith,  108  Mich.  527;  State  <v.  Whitaker,  160 
Mo.  59;  State  v.  Nelson,  52  Ohio  St.  88. 

245 


THE  OLD  LAW  AND  THE  NEW  ORDER 

which  heretofore  existed  ; '  that  it  may  in  cer- 
tain cases  limit  the  hours  of  labor  of  men  ; 2  that 
it  may  regulate  to  a  certain  extent  the  terms  and 
conditions  under  which  employees  shall  be  paid 
for  their  services,  and  prescribe  how  they  shall 
be  paid.3 

That  there  is  often  great  disagreement  between 
judges  as  to  the  limits  of  the  police  power  in 
protective  or  regulative  legislation  of  this  kind, 
goes  without  saying.  The  State  courts  often  flatly 
contradict  one  another  both  as  to  their  own 
powers  and  as  to  the  policy  of  the  courts.  Com- 
pare, for  example,  People  v.  Havnor,  149  N.  Y. 
195,  upholding  a  Sunday-closing  law  for  bar- 
bers, with  Ex  Parte  Jentzsch,  112  Cal.  468, 
both  cases  being  decided  in  the  same  year,  1896. 
The  California  courts  indignantly  repudiate  any 
power  on  the  part  of  the  legislature  to  take  away 
from  the  barber  his  constitutional  right  to  work 
all  day  on  holidays  and  Sundays,  and  declare 

1  Ry.  Co.  <v.  Mackey,  127  U.  S.  205;  Tullis  <v.  Ry.  Co., 
175  U.  S.  34.8  (   Minn.  Iron  Co.  <v.  Kline,  199  U.  S.  593. 

2  In  mines:  In  re  Boyce  [Nev.],  75  Pac.  Rep.  1;  State  a/. 
Cantwell,  179  Mo.  245;  on  street  railways  ;  re  Ten-Hour  Law 
for  street  railway  corporations:   24  R.  I.  603. 

3  Knoxville  Iron  Co.  <v.  Harbison,  183  U.  S.  13;  St.  Louis, 
etc.,  Ry.  Co.  <v.  Paul,  173  U.  S.  4045  Hancock  <v.  Yaden, 
121  Ind.  366. 

246 


INDUSTRIAL   INEQUALITY 

that  to  sustain  such  a  law  would  be  to  send  the 
barbers  from  the  prison  to  the  poorhouse  !  In 
spite  of  the  numbers  of  decisions  which  have 
been  rendered,  the  question  of  what  are  the 
limits  of  legislative  regulation  or  control  of  in- 
dustry through  the  police  power,  is  still  an  open 
one.  The  courts  have  adopted  no  general  policy, 
and  it  is  fortunate  that  they  are  not  obliged  to 
adopt  one. 

The  validity  or  invalidity  of  protective  laws 
of  this  character  is  ordinarily  a  question  for  the 
State  courts,  and  to  be  determined  with  refer- 
ence to  State  Constitutions  only.  Such  is  the 
view  which  the  Supreme  Court  of  the  United 
States  has  taken  almost  uniformly  in  construing 
exercises  of  the  police  power  by  State  legisla- 
tures. Numerous  State  laws  of  this  kind  have 
been  tested  in  the  Federal  courts  to  determine 
whether  they  violate  the  Fourteenth  Amend- 
ment and  its  sweeping  provisions  forbidding  the 
States  from  abridging  the  privileges  and  immu- 
nities of  citizens  of  the  United  States  or  deny- 
ing them  the  benefits  of  due  process  or  equal 
protection  of  the  laws.  That  Court  has  repeat- 
edly declared  that  the  police  power  was  reserved 
by  the  States  at  the  time  the  original  Consti- 
247 


THE  OLD  LAW  AND  THE  NEW  ORDER 

tution  was  adopted,1  and  that  the  Fourteenth 
Amendment  does  not  impair  its  authority.2 

In  Holden  v.  Hardy,  Judge  Brown  expresses 
the  non-intervention  policy  of  the  Federal  courts 
and  its  reason.  After  reviewing  changes  by  legis- 
lation which  States  have  made  in  the  past,  he 
observes  :  — 

An  examination  of  both  classes  of  these  cases  under 
the  Fourteenth  Amendment  will  demonstrate  that  in 
passing  upon  the  validity  of  State  legislation  under  that 
amendment  this  Court  has  not  failed  to  recognize  the 
fact  that  the  law  is  to  a  great  extent  a  progressive  sci- 
ence ;  .  .  .  that  restrictions  which  had  formerly  been 
laid  upon  the  conduct  of  individuals  or  of  classes  or 
individuals  had  proved  detrimental  to  their  interests, 
while,  upon  the  other  hand,  certain  other  classes  of 
persons,  particularly  those  engaged  in  dangerous  or  un- 
healthful  employments,  had  been  found  to  be  in  need 
of  additional  protection.  They  are  mentioned  only  for 
the  purpose  of  calling  attention  to  the  probability  that 
other  changes  of  no  less  importance  may  be  made  in 
the  future,  and  that,  while  the  cardinal  principles  of 
justice  are  immutable,  the  methods  by  which  justice 
is  administered  are  subject  to  constant  fluctuation,  and 
that  the  Constitution  of  the  United  States,  which  is 
necessarily  and  to  a  large  extent  inflexible  and  exceed- 
ingly difficult  of  amendment,  should  not  be  so  con- 

1  Mugler  i).  Kansas,  123  U.  S.  623. 

2  Barbier  <u.  Connolly,  113  U.  S.  27. 

248 


INDUSTRIAL   INEQUALITY 

strued  as  to  deprive  the  States  of  the  powers  so  to 
amend  their  laws  as  to  make  them  conform  to  the 
wishes  of  the  citizens  as  they  may  deem  best  for  the 
public  welfare,  without  bringing  them  in  conflict  with 
the  supreme  law  of  the  land. 

The  broad  scope  for  legislative  action  which 
is  thus  assured  the  States  is  apparent  from  this 
and  other  cases  in  that  Court. 

As  the  Court  says  in  Gundling  v.  Chicago, 
177  U.S.  183:  — 

Regulations  respecting  the  pursuit  of  a  lawful  trade 
or  business  are  of  very  frequent  occurrence  in  the  va- 
rious cities  in  the  country,  and  what  such  regulations 
shall  be  and  to  what  particular  trade,  business  or  occu- 
pation they  shall  apply,  are  questions  for  the  State  to 
determine,  and  their  determination  comes  within  the 
proper  exercise  of  the  police  power  by  the  State,  and 
unless  the  regulations  are  so  utterly  unreasonable  and 
extravagant  in  their  nature  and  purpose  that  the  prop- 
erty and  personal  rights  of  the  citizens  are  unneces- 
sarily, and  in  a  manner  wholly  arbitrary,  interfered  with 
or  destroyed  without  due  process  of  law,  they  do  not 
extend  beyond  the  power  of  the  State  to  pass,  and  they 
form  no  subject  for  Federal  interference.1 

This  general  attitude  of  the  United  States 
Supreme  Court  is  important  in  view  of  the  tend- 

1  See  also  Patterson  <v.  Kentucky,  97  U.  S.  501;  Barbier  <v. 
Connolly,  113  U.  S.  27;  Jacobson  <v.  Massachusetts,  197  U.  S. 
11;  Minnesota  Iron  Co.  =v.  Kline,  199  U.  S.  593. 

249 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ency  of  the  State  courts,  when  holding  statutes 
of  this  kind  to  be  unconstitutional,  to  make  the 
Fourteenth  Amendment  one  of  the  grounds  for 
their  decision.  No  appeal  lies  to  the  United 
States  Supreme  Court  from  such  decisions,  and 
when  the  State  court  bases  its  ruling  on  this 
ground,  amendments  of  the  State  Constitution 
can  afford  no  remedy.  The  State  courts  ordin- 
arily are  more  sensitive  to  infractions  of  the 
Federal  Constitution  than  the  Supreme  Court 
itself.  The  New  York  Court  of  Appeals,  for 
example,  nullified  under  the  Fourteenth  Amend- 
ment the  Eight-Hour  Law  on  Public  Works.1 
No  further  appeal  remained  for  those  interested 
in  sustaining  the  validity  of  this  law.  Shortly 
after  this,  however,  the  United  States  Supreme 
Court,  in  a  case  involving  a  similar  statute,2  held 
that  its  constitutionality  was  beyond  all  question. 
Not  infrequently  when  the  Federal  question  is 
thus  removed,  State  Constitutions  are  amended 
to  permit  legislation  for  which  there  is  strong 
popular  demand.  In  Colorado,  before  the  deci- 
sion of  the  United  States  Supreme  Court  in 
Holden  v.  Hardy,  sustaining  the  Eight-Hour 

1  People  <v.  Orange  County  Construction  Co.,  175  N.  Y.  84. 

2  Atkin  <v.  Kansas,  191  U.  S.  207. 

250 


INDUSTRIAL   INEQUALITY 

Law  for  miners,  the  State  court  had  advised  the 
legislature  that  a  proposed  law  of  the  same  or- 
der would  be  unconstitutional  under  the  Four- 
teenth Amendment  as  well  as  under  the  State 
Constitution.1  Thereafter  when  the  Supreme 
Court  had  disposed  of  the  Federal  question  in 
Holden  v.  Hardy,  the  Legislature  enacted  a 
similar  law  which  the  Colorado  courts  held  to 
be  unconstitutional,  but  solely  under  the  State 
Constitution.2  Thereafter  (as  in  New  York,  af- 
ter the  decision  of  Atkin  v.  Kansas),  the  Consti- 
tution of  the  State  was  amended  to  permit  the 
legislation  desired  by  the  people. 

In  Illinois  a  decision3  declares  unconstitu- 
tional a  law  prohibiting  more  than  eight  hours  a 
day  or  forty-eight  hours  a  week  for  the  labor 
of  women  in  factories.  Its  reasoning  is  based  on 
the  Fourteenth  Amendment  and  upon  the  State 
Constitution.  The  decision  is  generally  regarded 
by  writers  on  the  police  power  as  erroneous  so 
far  as  the  Fourteenth  Amendment  is  concerned, 
and  dicta  in  subsequent  decisions  of  the  United 
States  Supreme  Court  leave  little  doubt  that 
the  Federal  question  would  have  been  otherwise 

1  In  re  Eight-Hour  Bill,  21  Col.  29. 

2  In  re  Morgan,  26  Col.  415. 

3  Ritchie  <z/.  People,  155  111.  98. 

251 


THE  OLD  LAW  AND  THE  NEW  ORDER 

decided  by  that  Court,  but,  with  the  decision 
of  the  Illinois  Court  placed  squarely  on  the 
Federal  Constitution,  it  is  obviously  a  fruitless 
task  for  those  interested  in  the  protection  of 
women  in  industry  to  attempt  to  change  the 
Illinois  Constitution.1 

The  only  recent  decision  of  the  United  States 
Supreme  Court  on  legislation  of  the  character 

1  Subsequent  events  in  Illinois  illustrate  the  point  suggested  in 
the  text.  In  1892,  Illinois  by  its  Supreme  Court  declared,  as  stated, 
that  the  Eight-Hour  Day  Law  for  women  in  factories  took,  from 
them  life,  liberty,  and  property  without  due  process  of  law,  as 
forbidden  both  by  the  state  and  national  constitutions.  There 
being  no  appeal  allowable  to  the  United  States  Supreme  Court, 
nothing  was  done  or  could  be  done  in  Illinois  to  obviate  the  de- 
cision. It  created  an  impasse.  Years  later,  Oregon  held  a  similar 
law  to  be  constitutional.  It  was  appealed  to  the  United  States 
Supreme  Court  and  was  sustained  (Muller  <v.  Oregon,  208  U.  S. 
41 2).  Thereupon  the  Oregon  law  was  enacted  in  Illinois.  The  law 
was  again  tested  in  that  State  and  held  unconstitutional  by  a 
lower  court,  and  in  1 909,  held  constitutional  by  its  highest  Appeal 
Court.  This  first  decision  in  1892  had  absolutely  prevented  any 
law  limiting  the  hours  of  working-women  in  Illinois  for  seven- 
teen years  until  the  happy  accident  of  the  Muller  case  made  this 
change  possible.  One  of  the  most  important  law  reforms  advo- 
cated by  the  American  Bar  Association  is  one  by  which  an  appeal 
shall  be  permitted  to  the  United  States  Supreme  Court  from  all 
judgments  of  the  highest  court  of  any  State  declaring  a  State 
statute  unconstitutional  as  violative  of  the  Federal  Constitution. 
Such  appeals  cannot  be  taken  now,  thus  creating  conditions  such 
as  that  just  described.  Such  appeals  can  only  be  taken  under  pres- 
ent law  when  the  highest  State  Court  has  decided  in  favor  of  the 
statute  attacked,  not  when  it  has  declared  it  unconstitutional. 

252 


INDUSTRIAL   INEQUALITY 

herein  considered  in  which  the  act  in  question 
was  found  to  be  unconstitutional  is  Lochner  v. 
New  York,  198  U.  S.  45,  involving  our  law 
limiting  the  hours  of  labor  in  bakeries  to  sixty 
per  week  or  ten  hours  a  day.  This  decision  was 
concurred  in  by  a  bare  majority  of  the  Court  and 
is  narrow  in  its  scope.  The  Court  refuses  to 
consider  the  act  as  one  passed  for  the  health  of 
bakers.  It  construes  the  law  as  one  "the  real  ob- 
ject and  purpose  of  which  was  to  regulate  the 
hours  of  labor  between  master  and  employees 
(all  being  men  —  sui  juris)  in  a  private  business 
not  dangerous  in  any  degree  to  morals  or  in  any 
real  or  substantial  degree  to  the  health  of  the 
employee.  Under  these  circumstances,"  it  says, 
"  the  freedom  of  the  master  and  servant  to  con- 
tract with  each  other  in  relation  to  their  employ- 
ment, and  in  defining  the  same,  cannot  be  pro- 
hibited or  interfered  with  without  violating  the 
Federal  Constitution."  It  must  be  admitted 
that  if  followed  in  subsequent  decisions  the  au- 
thority assumed  in  this  case  over  the  exercise  of 
the  police  power  by  the  state  legislatures  will 
tend  very  materially  to  diminish  the  powers  of 
legislatures  to  make  laws  for  conditions  within 
their  borders  requiring,  in  their  judgment,  in- 
253 


THE  OLD  LAW  AND  THE  NEW  ORDER 

dustrial  legislation.  If  I  may  venture  a  personal 
opinion,  it  is  that  the  decision  is  a  reactionary 
one  which  will  not  be  enlarged  beyond  its  im- 
mediate facts  in  subsequent  rulings.  The  facts 
themselves  which  the  Court  finds  as  a  basis  for 
its  decision,  regarding  the  general  healthfulness 
of  the  baker's  occupation,  are  themselves  con- 
trary to  the  conclusions  of  modern  investiga- 
tors who  have  found  the  occupation  to  be  one 
of  unusual  unhealthfulness  and  of  extraordinary 
mortality. 

The  United  States  Supreme  Court  has  usu- 
ally, in  reviewing  exercises  by  the  state  legis- 
latures of  the  police  power,  been  influenced  by 
a  reflection  well  expressed  by  Justice  Harlan  in 
Atkin  v.  Kansas,  191  U.  S.  207,  at  p.  223, 
where  he  says  :  — 

No  evils  arising  from  such  legislation  could  be  more 
far-reaching  than  those  which  might  come  to  our  sys- 
tem of  government  if  the  judiciary,  abandoning  the 
sphere  assigned  to  it  by  the  fundamental  law,  should 
enter  the  domain  of  legislation  and  upon  grounds 
merely  of  justice  and  reason  or  wisdom  annul  statutes 
that  had  received  the  sanction  of  the  people's  repre- 
sentatives. 

The  extent  to  which  the  police  power  of  the 
State  shall  expand  to  meet  economic  and  social 
254 


INDUSTRIAL   INEQUALITY 

conditions,  depends,  of  course,  largely  upon  the 
attitude  of  the  judiciary.  The  judicial  policy,  as 
expressed  in  the  courts,  has  ordinarily  been 
against  fixing  upon  the  police  power  rigid  rules. 
As  the  Supreme  Court  of  Nebraska  has  said  in 
a  decision  sustaining  an  act  limiting  the  hours 
of  women  in  mercantile  establishments  : '  — 

We  are  unable  to  find  a  case  where  the  courts  have 
laid  down  any  rigid  rule  for  the  exercise  of  the  police 
power.  There  is  little  reason  under  our  system  of  gov- 
ernment for  placing  a  narrow  interpretation  on  this 
power  restricting  its  scope  so  as  to  hamper  the  legis- 
lature in  dealing  with  the  varying  necessities  of  society 
and  new  circumstances  as  they  arise  calling  for  legis- 
lative intervention  in  the  public  interest.  The  moment 
the  police  power  is  disturbed  or  curbed  by  fixed  or 
rigid  rules,  a  danger  will  be  introduced  into  our  sys- 
tem which  will  be  far  greater  than  the  results  rising 
from  an  occasional  mistake  by  legislative  bodies  in  ex- 
ercising such  power. 

An  objection  often  heard  to  legislation  of  this 
kind  comes  from  those  who  deny  that  ethical 
gains  can  come  through  legislation.  They  say, 
and  it  is  undoubtedly  true,  that  the  courts  and  the 
legislatures  can  by  no  actions  of  theirs  destroy 
human  selfishness  or  rapacity.  If,  in  the  rush 

1  Wenham  v.  State,  65  Neb.  394  [1902]. 

255 


THE  OLD  LAW  AND  THE  NEW  ORDER 

for  wealth,  standards  of  national  honor  have 
been  lowered,  if  we  have  canonized  capital  in- 
stead of  character,  if  all  this  be  true  (and  I  do 
not  believe  it  to  be  true,)  then  we  cannot  change 
the  moral  fibre  of  dishonest  men  by  legislation. 
But  admitting  all  this  and  that  the  law  cannot 
transform  the  character  of  the  avaricious  and 
cruel,  even  the  most  conservative  of  us  must 
admit  that  it  can,  if  the  limitations  of  our  law 
will  permit,  create  conditions  under  which  men 
who  are  willing  to  conduct  business  on  a  plane 
higher  than  that  of  mere  dollars  and  cents,  shall 
not  be  ground  down  by  competitors  willing  to 
oppress  the  lives  of  others  to  make  trade  pro- 
fits. 

The  danger  is  more  imaginary  than  real  that 
the  intervention  of  the  State  in  industry  would, 
under  a  broad  construction  of  the  police  power 
by  the  courts,  be  too  frequent;  that  individual 
initiative  would  be  cramped  by  unnecessary  and 
unreasonable  restraints,  that  handicaps  would 
be  placed  upon  legitimate  competition  by  this 
type  of  legislation.  Our  legislatures,  for  example, 
have  almost  uniformly  listened  with  strained 
attention  to  the  representatives  of  great  business 
interests,  even  when  they  have  opposed  the  most 
256 


INDUSTRIAL   INEQUALITY 

reasonable  limitations  on  their  powers,  the  most 
righteous  extensions  of  their  duties  and  liabilities. 
We  are  to-day,  for  example,  behind  all  other 
great  civilized  countries  of  the  world  in  the 
protection  which  our  law  affords  the  safety  of 
employees.  Such  protective  laws  as  have  been 
upheld  as  to  their  constitutionality  have  been 
almost  invariably  strictly  construed  by  the  courts 
against  the  purposes  of  the  legislature.  Take  a 
single  illustration.  In  1847  England  adopted 
as  a  part  of  her  factory  act  a  provision  requiring 
guards  to  be  placed  upon  dangerous  machinery. 
It  has  enforced  that  law.  Forty  years  later  New 
York  adopted  substantially  the  same  statute. 
Her  courts,  however,  have  practically  nullified 
it.1  Our  law,  as  regards  responsibility  of  em- 
ployers for  industrial  accidents,  is  generally 
regarded  by  the  learned  text-book  writers  as  un- 
just in  important  particulars  and  unsuited  to 
our  time.  Yet  how  slowly,  how  unwillingly  have 

1  Compare  Knisley  <v.  Pratt,  147  N.  Y.  372,  with  Baddesley 
v.  Lord  Granville,  19  Q.  B.  D.  423  ;  Simpson  <v.  N.  Y.  Rub- 
ber Co. ,  80  Hun,  418,  with  De  Young  t/.  Irving,  5  A.  D. 
449.  In  1912  the  Court  of  Appeals  of  New  York,  has,  in  a  later 
decision,  Fitzwater  <y.  Warren,  206  N.  Y.  355,  discarded  the  doc- 
trine laid  down  in  the  Knisley  v.  Pratt  case  to  which  my  criticism 
applied  and  has  adopted  a  rule  in  harmony  with  an  enlightened 
public  policy. 

257 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  legislatures  increased  the  responsibilities  of 
employers ;  how  few  States  have  abolished  the 
fellow-servant  doctrine  or  changed  the  rule  of 
assumed  risk.  We  kill  or  injure,  we  are  told, 
over  half  a  million  people  in  industrial  employ- 
ments in  the  United  States  every  year.1  Our 
own  Commissioner  of  Labor  some  years  ago  esti- 
mated that  in  this  State  we  annually  cripple,  kill, 
or  injure  forty  thousand  individuals  in  our  in- 
dustrial establishments.  Yet  we  have  made  but 
rudimentary  changes  in  the  law.  The  Employ- 
ers' Liability  Act,  adopted  in  this  State  in  1902, 
was  not  more  advanced  in  its  principles  than 
that  which  England  adopted  in  1880  and  had 
abandoned  as  inadequate  five  years  before  our 
own  act  was  made  law.  Yet  our  statute  took 
seven  years  to  obtain  its  passage  from  the  New 
York  Legislature.  The  Federal  Employers' 
Liability  Act  of  1905,  the  most  far-reaching 
American  Law  on  the  liability  of  railroads  to 
their  employees,  enacted  after  years  of  agitation, 
and  now  under  a  temporary  eclipse  as  to  its 
constitutionality,2  is  not  more  favorable  to  those 

1  See  North  American  Review  of  November  1 6,  1906,  "Our 
Industrial  Juggernaut." 

2  Subsequently  reenacted  with  Amendment  and  held  consti- 
tutional.   Mondou  <l\    New  York,  N.  H.  &  H.  R.R.  Co.,  223 

258 


INDUSTRIAL   INEQUALITY 

employees  than  the  law  of  Prussia  was  in 
1838.' 

With  States  vying  with  one  another  in  in- 
creasing competition  for  trade,  our  legislatures 

U.  S.  1  (February  1912),  reversing  the  decision  by  Chief  Just- 
ice Baldwin,  of  Connecticut,  which  was  the  subject  of  the  mem- 
orable controversy  between  Judge  Baldwin  and  ex-President 
Roosevelt. 

1  The  extraordinary  change  in  public  sentiment  and  in  the 
attitude  of  the  courts  and  legislatures  upon  this  subject  since  this 
paper  was  written  deserves  something  more  than  passing  comment- 
The  former  apathy  and  indifference  has  disappeared  and  the  prob- 
lem of  industrial  accidents  from  the  standpoint,  both  of  prevention 
and  of  legal  redress,  is  one  receiving  the  most  careful  considera- 
tion. Some  idea  of  the  extent  of  this  new  interest  may  be  had 
from  the  'statement  that  within  the  past  three  years  over  twenty 
states  have  established  commissions  to  investigate  the  condition 
of  the  law  and  of  industry  with  reference  to  industrial  accidents 
within  their  borders.  In  fifteen  states  Workmen's  Compen- 
sation Acts  adapted  so  far  as  possible  to  European  models 
have  been  enacted,  embodying  sweeping  and  radical  provisions, 
many  of  which  never  before  existed  in  any  American  state.  New 
York,  which  was  a  pioneer  state,  both  in  investigation  and  in 
legislation  of  this  type,  had  its  first  statute  declared  unconstitu- 
tional in  1 91 1  and  in  19 12  a  proposed  constitutional  amendment 
was  passed  by  the  legislature,  which  if  readopted  at  the  present 
session  will  be  submitted  to  the  people  for  ratification,  an  amend- 
ment of  a  very  broad  character  giving  large  powers  of  action  on 
this  subject  to  its  legislature  to  overcome  the  objection  of  its  high- 
est court.  The  employers'  liability  legislation,  which  had  been 
adopted  in  the  last  three  years,  is  of  a  more  fundamental  char- 
acter and  broader  in  its  sweep  than  that  of  any  previous  period 
in  our  history.  Nor  should  the  action  of  Congress  be  overlooked 
and  the  several  enactments  which  have  been  adopted  covering 
federal  employees  and  servants  engaged  in  interstate  commerce  on 

259 


THE  OLD  LAW  AND  THE  NEW  ORDER 

arc  not  likely  to  impose  handicaps  which  will 
drive  business  interests  away  from  their  borders. 
This  hesitancy  of  the  legislatures  to  place  these 
interests  at  a  disadvantage  in  competing  with 
establishments  in  other  States,  coupled  with  the 
conservatism  of  the  courts,  have  generally  proved 
sufficient  guaranties  against  meddlesome  and 
unnecessary  legislation,  and  such  guaranties  are 
likely  to  continue  even  if  the  police  power  be 
largely  expanded  to  meet  new  conditions. 

The  danger  from  the  increase  of  the  police 
power  is  not  great.  The  danger  from  judicial 
construction  of  that  power  which  shall  stop  its 
expansion  is  more  serious.  Our  social  order  has 
many  enemies,  enemies  who  find  arguments  for 
presaging  its  disintegration  and  decay  in  the 
enormous  concentration  of  wealth,  in  the  growth 
of  the  great  corporations,  in  the  financial  dis- 
honesty which  has  been  so  recently  exposed  in 
high  places,  and  in  the  misery  and  wretchedness 
of  thousands  whose  lives  are  exploited  in  indus- 

railroads.  A  great  part  of  this  new  legislation  is  necessarily  ex- 
perimental, but  the  interest  which  has  been  aroused  in  the  subject, 
the  extent  of  careful  analysis  which  has  been  made,  the  general 
willingness  on  the  part  of  employers  and  great  business  con- 
cerns to  have  such  legislative  experiments  undertaken  to  correct 
a  crying  evil  in  our  law,  is  one  of  the  most  inspiriting  incidents  in 
the  history  of  industrial  legislation  in  this  country. 

260 


INDUSTRIAL    INEQUALITY 

try.  But  their  arguments  with  all  the  exaggera- 
tions and  falsehoods  which  may  be  added  to 
them  by  a  sensational  press,  while  they  may  in- 
flame the  blood  of  discontent,  will  never  carry 
general  conviction,  until  the  courts  have  first 
convinced  the  people  that  in  the  presence  of 
social  and  industrial  wrong  the  State  is  power- 
less to  meet  conditions  which  demand  law;  un- 
til the  courts  have  convinced  the  people  that, 
bound  and  fettered  by  an  inflexible  written  con- 
stitution framed  over  a  century  ago,  the  State 
cannot  exercise  functions  which  the  present 
needs  of  society  require  it  to  exercise. 

The  decisions  of  the  courts  which  the  Social- 
ist looks  for  with  eager  expectancy  —  declara- 
tions of  the  paralysis  of  the  State,  of  its  inabil- 
ity to  deal  with  economic  problems  by  law  — 
are,  however,  few  and  far  between.  Reactionary 
judges  there  may  be  at  times  who  refuse  to  be 
our  contemporaries,  who  look  only  to  the  past 
to  judge  the  needs  of  the  present ;  yet  slowly 
but  surely,  as  public  opinion  matures,  the  power 
of  the  State  is  expanding  to  protect  as  well  as  to 
punish,  in  a  land  wherein  the  recognized  rights 
of  the  individual  include  not  only  liberty,  but 
life  and  a  fair  field  for  the  pursuit  of  happiness. 


X 

The  Ethics  of  Production 


X 

The  Ethics  of  Production ' 

When  Charles  Dickens  came  to  this  country 
in  the  forties,  he  found  us,  judging  by  "  Martin 
Chuzzlewit "  and  the  "  American  Notes,"  a  very 
self-satisfied  people.  Second  only  to  our  indul- 
gence in  chewing  tobacco,  he  found  our  indul- 
gence in  boastful  expression  of  our  own  great- 
ness and  our  supreme  conviction  that  ours  was 
the  greatest  country  on  earth  and  we,  its  great- 
est people.  He  felt  constrained  to  expose  to  the 
pained  senses  of  our  grandparents  the  glaring 
error  in  our  conceptions  of  ourselves.  If  Dickens 
should  rise  from  his  grave  to-day  and  visit  us 
again  and  once  more  write  his  impressions  of 
us,  I  am  sure  he  would  still  have  for  his  main 
theme,  the  attitude  of  the  American  towards 
himself.  But  where  he  found  buoyant  self-satis- 
faction before,  he  would  find  in  the  present  gen- 
eration a  curious  twist  in  the  other  direction.  We 
have  grown  rich  and  powerful,  to  be  sure,  and 

1  An  address  delivered  in  the  Page  Lecture  Series  at  Yale 
University  1908. 

265 


THE  OLD  LAW  AND  THE  NEW  ORDER 

we  are  still  proud  of  our  development  and  of 
the  prospects  of  the  future,  but  with  it,  thank 
Heaven,  we  have  greatly  developed  the  capa- 
city for  self-criticism. 

This  discontent,  which  to-day  is  the  promin- 
ent part  of  our  self-criticism,  has  largely  to  do 
with  our  moral  standards.  The  past  few  years 
have  been  prolific  of  distressing  scandals,  the 
Post-Office,  the  insurance  revelations,  the  beef 
trust,  and  the  constant  succession  of  exhibitions 
of  municipal  corruption  from  New  York  to  San 
Francisco.  Now  there  is  something  foreign  to 
the  American  temper  about  hushing  up  public 
scandal.  So  much  has  been  put  into  print  about 
our  political,  financial,  and  business  corruption, 
that  many  good  people  have  been  made  some- 
what pessimistic;  have  been  led  to  believe  that 
these  conditions  are  characteristic  of  American 
life ;  that  we  are  degenerating  morally  ;  that  we 
are  interested  mostly  in  money  ;  in  sound  money 
and  not  in  clean  money,  and  in  its  quantity 
rather  than  in  its  quality  or  how  we  get  it. 

Pessimism  has  always  a  knowing  air,  and  it 

usually  has  some  definite  superficial  fact  or  other 

to  point  to  as  its  justification.   But  the  noticeable 

thing  about  these  waves  of  general  pessimism  is 

266 


THE   ETHICS    OF   PRODUCTION 

that  they  usually  seem  to  come  a  little  too  late. 
They  tend  to  get  strongest  when  the  reason  for 
coming  has  largely  disappeared.  If,  for  example, 
half  a  dozen  of  the  depressing  commencement 
lectures  of  the  last  year  and  the  year  before,  on 
our  moral  decrepitude,  had  been  delivered  in 
the  days  when  the  ideal  of  American  prosperity 
seemed  to  be  nothing  but  material  wealth,  how- 
ever come  by,  and  the  full  dinner  pail,  these  ad- 
dresses would,  in  my  judgment  at  least,  have 
been  somewhat  opportune ;  but  they  were  not 
particularly  opportune  when  they  were  actually 
given.  These  academic  pessimists  remind  me 
of  an  old  lady  in  my  native  city  who  made  a 
specialty  of  going  in  and  talking  about  death 
to  convalescents.  Somehow  she  never  seemed  to 
get  around  to  prepare  her  sick  friends  for  death 
until  after  they  were  really  beginning  to  get  well, 
and  she  would  then  discourse  on  her  favorite 
theme  so  earnestly  that  she  quite  overlooked 
the  actual  condition  of  the  patient.  I  think  of 
her  sometimes  when  I  read  these  pessimistic 
utterances  concerning  the  present  moral  tone  of 
American  business  life.  These  exposures  as  I 
see  them  are  not  so  much  indications  of  Amer- 
ica sick  as  of  America  getting  well.  The  cor- 
267 


THE  OLD  LAW  AND  THE  NEW  ORDER 

ruption  we  hear  so  much  about  is  not  new. 
The  new  thing  is  the  desire  to  uproot  and  de- 
stroy it. 

I  have  made  this  introduction  because  I  want 
to  be  sure  to  make  perfectly  clear  the  spirit  in 
which  I  approach  my  subject  by  expressing  at 
the  outset  my  own  sincere  conviction  that  the 
professional  and  business  life  of  America,  into 
which  you  are  so  soon  to  enter,  has  for  its  es- 
sential qualities,  not  decadence,  but  rather  re- 
generation, in  which  moral  forces  have  not  lost 
ground,  but  are  receiving  a  sure  and  constant 
increase  of  power. 

I  have  been  asked  to  talk  to  you  about  the 
ethics  of  production.  So  far  as  its  human  factors 
are  concerned,  production  in  a  business  sense 
involves  three  human  relations.  First,  that  of 
the  producer  to  his  own  employees,  by  whose 
labor  his  wares  are  made;  second,  his  relation 
to  the  trade,  with  the  factors  and  retailers  who 
handle  his  goods;  and  third,  his  relation  with 
the  public  who  buys  those  goods. 

There  is  no  subject  of  a  social  character  which 

is  receiving  to-day  more  attention  from  both  the 

general  public  and  the  business  world  than  that 

of  the  relation  of  employer  and  employee.  Now 

268 


THE   ETHICS   OF   PRODUCTION 

it  is  one  of  the  easiest  things  in  the  world  to  lay 
down  in  general  terms  abstract  propositions  as  to 
their  reciprocal  duties.  Justice  demands,  for  in- 
stance, that  the  employer  should  pay  his  employ- 
ees fair  wages,  exact  only  fair  hours  of  employ- 
ment, and  that  theconditions  of  the  employment 
should  be  such  as  to  give  due  protection  to  the 
health  and  safety  of  the  worker.  The  employee 
on  his  part  should  make  by  his  labor  just  return 
for  his  wages.  Thus  far  it  is  plain  sailing,  or  rather 
it  is  not  sailing  at  all,  for  we  have  not  yet  really 
embarked.  The  moment  we  leave  the  realm  of 
abstract  morality,  the  moment  we  begin  to  apply 
ethical  principles  to  a  going  business,  trouble 
begins.  It  begins,  not  because  the  principles 
themselves  are  false  or  that  they  become  doubt- 
ful when  tested  by  use,  but  because  of  certain 
considerations  which  render  their  application 
difficult. 

You  remember  the  colloquy  between  Morrell 
and  Burgess  in  "  Candida,"  and  the  retort  of  the 
hard  old  factoryman  :  "  But  arter  all,  you  can't 
take  everything  a  clergyman  says  serious,  or  the 
world  could  n't  go  on." 

What  we  are  interested  in  here  is,  I  take  it, 
not  ideals  in  the  abstract,  which  would  prevent 
269 


THE  OLD  LAW  AND  THE  NEW  ORDER 

the  world  going  on,  but  ideals  capable  of  being 
worked  into  the  processes  of  the  world,  ideals  in 
conduct,  and  to  consider  from  this  standpoint 
some  of  the  problems  of  industrial  justice.  We 
are  not  interested  in  an  abstract  employer  in  a 
hypothetical  ideal  business,  but  the  actual  em- 
ployer in  a  concrete  business  world  and  the  prac- 
tical difficulties  in  the  way  of  the  industrial  ideal. 
Looked  at  from  one  point  of  view  these  prac- 
tical questions  do  not  seem  even  to  exist.  That 
point  of  view  is  the  one  which  makes  the  whole 
matter  of  the  treatment  of  the  employee  by  the 
employer  a  purely  individual  one,  and  the  re- 
sponsibility for  which  is  made  to  rest  wholly  with 
the  individual  employer.  A  good  many  difficul- 
ties may  be  made  to  disappear  by  the  happy  de- 
vice of  not  looking  at  them.  We  use  that  method 
to  a  very  large  extent  in  our  ordinary  considera- 
tions of  the  employment  question.  Take  a  con- 
crete illustration.  A  very  large  per  cent  of  our 
ready-made  clothing  is  made  in  the  slums  of  the 
great  cities  in  tenement  houses,  in  ill-ventilated 
or  unventilated  rooms,  by  men,  women,  and  very 
young  children  who  work  long  hours  for  almost 
incredibly  small  pay.  The  class  of  producers 
who  employ  these  poor  people  to  make  up  these 
270 


THE   ETHICS   OF    PRODUCTION 

garments  in  these  places  we  call  "  sweaters," 
and  the  sweater  is  the  stock  example  of  the 
bad  employer.  He  is  the  blackest  black  sheep 
of  the  producing  world.  We  call  him  hard  names, 
and  no  doubt  he  deserves  them  all.  But  if  we 
accuse  the  sweater  of  all  the  inhumanity  with 
which  his  class  is  charged,  he  will  answer  it  all 
by  a  very  few  words,  simply  expressed,  which, 
to  him  at  least,  offer  a  complete  reply  to  the 
whole  indictment.  He  will  say,  "  Do  you  know 
what  the  Broadway  wholesaler  pays  me  for  mak- 
ing coats  ?  Now  you  say  I  pay  too  little  to  my 
help.  I  answer,"  says  the  sweater,  "if  I  paid 
more,  if  I  did  not  work  my  people  long  hours, 
if  I  had  no  small  cheap  children  to  work  for  me, 
I  could  not  compete  for  the  wholesaler's  trade. 
I  should  be  put  out  of  business  by  my  compet- 
itors who  work  as  I  work  now,  and  who  would 
underbid  me  if  I  should  change  the  conditions 
of  my  work.  Shall  I  commit  business  suicide  to 
gratify  your  kind  heart?"  It  is  easy  for  us  to 
tell  the  sweater  to  commit  business  suicide.  Such 
a  gratifying  demise  costs  us  nothing.  But  suicide, 
business  or  otherwise,  answers  few  problems. 

Now  you  and  I  have  very  little  use  for  the 
man  who  always  cries  that  he  is  a  victim  of  cir- 
271 


THE  OLD  LAW  AND  THE  NEW  ORDER 

cumstances.  You  remember  Johnson's  retort  to 
the  man  who  was  excusing  some  rascality  by  say- 
ing, "  One  must  live."  "  I  'm  not  so  sure  of  it," 
said  the  old  doctor.  I  am  not  trying  to  defend 
the  sweater,  nor  do  I  suggest  that  the  frightful 
competitive  struggle  in  which  his  business  life 
is  lived  lessens  his  individual  responsibility. 
I  am  simply  calling  your  attention  by  concrete 
illustrations  to  one  of  the  greatest  practical 
difficulties  of  applying  abstract  rules  of  moral 
conduct  to  business. 

Now  this  exaggerated  illustration  from  con- 
ditions in  the  so-called  sweated  trades  I  have 
brought  up  to  make  you  consider  what  the  in- 
dividual responsibility  of  the  producer  is  in  the 
face  of  that  situation  or  other  situations  similar 
if  less  extreme.  Competition  has  been  and  in 
many  respects  still  is  the  root  and  basis  of  the 
producer's  business  life.  In  some  industries  com- 
petition is  very  intense,  the  margin  of  profit  is 
very  narrow.  Where  that  competition  is  so  in- 
tense, the  practical  difficulty  standing  in  the  way 
of  the  well-intentioned  employer  who  wants  to 
treat  his  employees  fairly  seems  almost  insuper- 
able. What  is  to  be  done  ?  How  are  the  work- 
ing conditions  to  be  raised  to  a  plane  of  decency  ? 
272 


THE   ETHICS   OF   PRODUCTION 

Now  there  are  three  solutions  offered  to  this 
problem.  One  is  to  reach  the  conscience  of  the 
employer,  to  make  him  feel  a  greater  moral  re- 
sponsibility for  the  welfare  of  his  help,  to  make 
him  anxious  to  improve  their  condition  ;  and,  by 
exhorting  him  and  at  times  by  abusing  him,  make 
him  clean  up  his  shop,  raise  wages,  and  shorten 
hours. 

I  sometimes  wish  those  of  us  who  are  inter- 
ested in  this  particular  method  of  improving  so- 
cial conditions  would  use  more  often  the  example 
of  the  good  rather  than  the  bad  employer.  It  is 
always  important  to  know  just  what  can  be  done 
under  existing  business  conditions.  The  best 
way  to  ascertain  what  can  be  done  is  to  see  what 
high-class  employers  are  in  fact  doing  and  to 
try  and  make  other  employers  comply  with  a 
demonstrably  practical  standard.  Some  time  ago, 
one  of  the  officers  of  a  national  organization  in- 
terested in  improving  working  conditions  went 
to  aNewJersey  town  to  examine  the  glass  manu- 
factories there,  with  particular  reference  to  child 
labor.  She  went  about  at  night,  found  these  es- 
tablishments running  full  blast,  with  little  child- 
ren busily  engaged,  carrying  bottles  to  and  fro 
all  night  long.  One  establishment,  however,  she 
273 


THE  OLD  LAW  AND  THE  NEW  ORDER 

noticed  was  dark.  The  next  morning  she  went 
back  to  make  sure  that  it  was  really  closed  down, 
and  somewhat  to  her  surprise  found  it  in  busy 
operation.  The  proprietor  met  her  courteously 
and  took  her  through  the  plant.  There  were  no 
children  except  those  obviously  about  the  legal 
age.  The  general  conditions  were  good.  At  the 
end  of  her  visit  she  said  inquiringly,  "  You  do 
not  run  your  plant  at  night?"  "No,"  he  an- 
swered. "  Do  you  let  your  fires  go  out  ? "  "Yes." 
"  That  costs  you  money,  does  n't  it  ?  "  "  Yes." 
"  These  other  bottle-makers  say  they  cannot 
afford  to  close  at  night  and  that  competition 
compels  them  to  use  little  children  in  their 
work."  "  Yes,"  he  replied,  "  but  I  do  not  try 
to  make  so  much  money  as  my  friends.  I  do  not 
like  to  work  at  night,  nor  do  my  employees,  nor 
do  I  care  to  rob  the  schools  to  get  my  help. 
My  business  is  profitable  enough  and  I  am  sat- 
isfied." 

Now  I  say  this  was  an  interesting  man,  but 
while  I  know,  as  perhaps  many  of  you  know 
about  the  bad  conditions  so  far  as  child  labor  is 
concerned  in  the  glass  manufactories,  which  are 
notoriously  evil  places  for  children,  I  cannot 
give  you  the  name  of  this  good  employer  who 
274 


THE   ETHICS   OF   PRODUCTION 

did  not  try  to  make  so  much  money  and  who 
still  "lived"  in  a  business  sense  under  the  com- 
petition of  his  rivals.  It  would  be  more  useful 
in  the  campaign  against  child  labor  if  the  facts  re- 
garding this  man's  business  were  publicly  known 
than  that  we  should  have  a  good  part  of  the 
shocking  details  of  the  employment  of  children 
in  glass  factories.  For  his  business  would  show 
what  a  glass  manufacturer  can  do  if  he  chooses, 
under  existing  business  conditions,  and  it  would 
cover  and  meet  the  plea  of  economic  helpless- 
ness so  often  urged  by  his  fellows.  Some  time 
we  shall  become  wise  enough  to  followthis  policy, 
and  recognize  the  tremendous  social  value  of  such 
employers.  There  is  no  more  useful  man  in  busi- 
ness to-day  than  the  man  who  establishes  high 
standards  and  shows  that  they  can  be  maintained 
in  actual  practice.  One  distressing  thing  about 
this  story  to  me  is  in  one  simple  fact,  which  I  have 
omitted  thus  far,  namely,  this  good  bottle-man 
was  a  Frenchman  ! 

Another  method  of  improving  industrial  con- 
ditions is  to  encourage  the  workers  to  combine 
in  trade-unions,  and  gain  power  by  combination 
so  that  they  can  compel  an  unwilling  employer 
to  do  the  things  which  otherwise,  but  for  their 
275 


THE  OLD  LAW  AND  THE  NEW  ORDER 

own  insistence,  he  would  have  refused.  This  is 
good  in  its  way,  but  after  all  permanent  moral 
progress  can  hardly  be  made  with  a  club.  There 
is  no  special  ethical  quality  in  what  a  man  does 
solely  under  compulsion.  Another  phase  of  this 
use  of  the  labor-union  I  will  consider  later.  To 
a  very  considerable  number  of  people  interested 
in  improving  business  conditions  for  the  worker, 
these  two  methods  are  the  only  methods  for  mak- 
ing practical  progress.  They  oppose  the  third 
method  of  improving  those  conditions,  which  is 
to  enact  law  which  shall  regulate  at  times  the 
conditions  of  employment,  sanitary  and  other- 
wise, and  improve  the  method  of  conducting 
work.  One  objection  usually  urged  to  the  enact- 
ment of  law  is  that  such  law  tends  towards  what 
is  vaguely  described  as  Socialism.  Another  is 
that  you  can't  make  men  good  by  legislation. 
Those  critics  point  out  that  English  law  cent- 
uries ago  contained  statutes  under  which  justices 
of  the  peace  yearly  determined  the  wages  which 
journeymen  were  to  have,  prescribed  the  length 
and  breadth  of  cloth  which  should  be  made  or 
used,  and  made  other  similar  attempts  at  regu- 
lating industry,  all  of  which  failed.  But  there  is 
a  distinction  between  these  meddlesome  regu- 
276 


THE   ETHICS   OF   PRODUCTION 

lations  contained  in  the  old  English  law,  which 
were  made  not  to  promote  the  interests  of  the 
worker,  but  to  hamper  him  in  his  social  progress, 
—  to  keep  him  where  the  higher  classes  thought 
he  belonged,  —  and  legislation  which  to-day  en- 
deavors in  sundry  instances  to  mitigate  the  hard- 
ships of  over-competitive  industry  lest  the  com- 
petition should  oppress  the  lives  of  countless 
thousands  to  make  trade  profits.  The  modern 
theory  for  this  legislation  has  been  so  well  ex- 
pressed by  Woodrow  Wilson,  that  I  quote  from 
his  book,  "The  State,"  the  following:  — 

There  are  some  things  outside  the  field  of  natural 
monopolies  in  which  individual  action  cannot  secure 
equalization  of  conditions  of  competition,  and  in  these 
also,  as  in  the  regulation  of  monopolies,  the  practice 
of  government  (of  our  own  as  well  as  of  others)  has 
been  increasingly  on  the  side  of  government  regula- 
tion. By  forbidding  child  labor,  by  supervising  the 
sanitary  conditions  of  factories,  by  limiting  the  em- 
ployment of  women  in  occupations  hurtful  to  their 
health,  by  instituting  official  tests  of  the  purity  or 
quality  of  goods  sold,  by  limiting  hours  of  labor  in 
certain  trades,  by  a  hundred  and  one  limitations  of  the 
power  of  unscrupulous  or  heartless  men  to  outdo  the 
scrupulous  and  merciful  in  trade  or  industry,  govern- 
ment has  assisted  equity.  Those  who  would  act  in 
moderation  and  good   conscience   where   moderation 

277 


THE  OLD  LAW  AND  THE  NEW  ORDER 

and  good  conscience  to  be  indulged  require  an  in- 
creased outlay  of  money,  in  better  ventilated  build- 
ings, in  greater  care  as  to  the  quality  of  goods,  etc., 
cannot  act  upon  their  principles  so  long  as  grinding 
conditions  for  labor  or  more  unscrupulous  use  of  the 
opportunities  of  trade  secure  to  the  unconscientious  an 
unquestionable,  and  sometimes  even  a  permanent  ad- 
vantage ;  they  have  only  the  choice  of  denying  their 
consciences  or  retiring  from  business.  In  scores  of 
such  cases  government  has  intervened  and  will  inter- 
vene by  way  not  of  interference,  by  way  rather  of 
making  competition  equal  between  those  who  would 
rightly  conduct  enterprise  and  those  who  basely  con- 
duct it.  It  is  in  this  way  that  society  protects  itself 
against  permanent  injury  and  deterioration  and  se- 
cures healthful  equality  of  opportunity  for  self-develop- 
ment. 

Organized  society  ought  to  be  on  the  side  of 
our  friend  the  bottle-man.  That  he  was  able  to 
live  in  competition  with  his  child- exploiting 
rivals  was  entirely  to  his  credit,  not  at  all  to 
ours.  New  Jersey  still  thinks  it  proper  that 
children  of  fourteen  should  work  all  night  long 
in  the  glass  factories. 

Now  I  venture  to  say  that  comparatively 
little  of  this  type  of  legislation  would  be  ob- 
tained to-day  but  for  the  acquiescence  and  at 
times  the  active  assistance  of  enlightened  em- 
278 


THE   ETHICS   OF   PRODUCTION 

ployers.  The  improvement  in  working  condi- 
tions which  has  been  made  in  the  last  quarter 
of  a  century  has  been  great.  We  should  not  be 
discouraged.  We  complain  of  the  conditions  of 
child  labor  in  the  South,  we  complain  of  the 
sweated  trades  in  our  cities,  and  when  we  fail 
to  consider  the  subject  historically  or  on  broad 
lines  we  find  many  of  these  pitiful  stories  of  ex- 
ploitation of  young  life,  in  these  industries  and 
in  the  coal-mines,  exceedingly  disheartening  and 
distressing.  But  compare  the  woman  working 
in  the  slums  in  the  long  hours  of  the  sweatshop 
with  the  conditions  in  England  in  the  first  and 
second  quarter  of  the  nineteenth  century,  with 
the  woman  in  the  mines  crawling  on  her  hands 
and  knees  with  a  rope  tied  around  her  waist, 
dragging  coal  in  crude  buckets  in  narrow  tun- 
nels in  which  she  could  not  possibly  stand  up- 
right, working  in  dirt  and  mud,  living  in  degra- 
dation and  filth  in  the  mine  itself.  Compare  the 
breaker-boy  picking  coal  in  Pennsylvania  with 
the  chimney-sweep  of  the  first  quarter  of  the 
nineteenth  century,  struggling  up  and  down 
blackened  flues,  through  which  the  body  could 
scarcely  pass,  often  killed  by  the  smoke  or 
burned  by  the  fire  of  the  stove  below,  the 
279 


THE  OLD  LAW  AND  THE  NEW  ORDER 

chimney-sweep  whom  Sydney  Smith  describes 
in  his  essay,  apologizing  ironically  for  an  inter- 
est, which  in  his  day  was  so  unusual,  in  "  the 
dirty  tears  of  the  poor."  In  1847,  when  the 
English  factory  act  of  that  year  was  up  for  de- 
bate in  Parliament,  one  of  the  most  strenuous 
opponents  to  the  limiting  of  hours  of  factory 
employees  was  that  stanch  friend  of  America, 
John  Bright,  one  of  the  most  high-minded  men 
who  ever  sat  in  the  House  of  Commons.  Here 
is  part  of  the  speech  which  he  made  in  1847  on 
the  proposed  factory  act :  — 

There  is  one  consideration  which  the  House  ought 
to  bear  in  mind  with  respect  to  the  employment  of 
women  in  factories.  The  assertion  was  that  their 
labor  in  factories  was  extremely  hard  and  long  con- 
tinued, but  how  did  it  happen  that  women  were  found 
in  factories  at  all  ?  The  very  fact  that  they  were  there 
in  large  numbers  was  conclusive  evidence  that  their  labor 
in  factories  was  not  hard. 

Again  he  says :  — 

Did  the  Honorable  Member  from  Dorsetshire  for- 
get that  these  children  did  not  work  more  than  six 
hours  a  day  until  they  were  thirteen  years  old?  By  in- 
terfering with  the  right  to  exert  themselves,  you  are 
violating  one  of  the  greatest  privileges  and  dearest 
rights  of  these  people. 

280 


THE   ETHICS   OF   PRODUCTION 

I  quote  this  because  I  think  it  illustrates  the 
change  in  the  attitude  of  our  time  towards  this 
subject.  Imagine,  if  you  will,  a  speaker  of  na- 
tional prominence,  either  in  our  country  or 
Great  Britain,  giving  utterance  to  similar  senti- 
ment to-day.  The  growth  of  the  sense  of  pity  has 
been  one  of  the  most  remarkable  features  of  our 
development  in  the  last  half-century.  This  com- 
bination of  ignorance  and  lack  of  sympathy  in 
Bright's  speech  jars  upon  us.  It  belongs  to  a  less 
humane  era  than  ours. 

I  am  not  advocating  any  diminution  of  the 
individual  responsibility  of  the  employer.  What 
I  am  calling  to  your  attention  is  the  increasing 
acceptance  of  the  principle  of  social  responsibility 
to  supplement  it — a  responsibility  recognized 
and  expressed  in  laws  which  limit  the  illegitimate 
advantage  which  the  unscrupulous  employer 
otherwise  has  over  his  more  humane  competitors, 
through  his  very  willingness,  without  such  re- 
strictions, to  oppress  and  exploit  his  employees. 

Considering  the  lack  of  adequate  acceptance 
as  yet  of  this  social  responsibility  (for  it  is  fairly 
new  doctrine  with  us),  I  think  the  general  stand- 
ard of  treatment  of  employees  in  our  industrial 
establishments  is  rather  higher  than  might  be 
281 


THE  OLD  LAW  AND  THE  NEW  ORDER 

expected.  We  have,  for  example,  no  laws  such 
as  exist  in  England,  Germany,  and  France  con- 
cerning industrial  accidents.  In  England,  as  Mr. 
Asquith  has  pithily  expressed  it,  "  The  blood  of 
the  workman  is  part  of  the  cost  of  the  product " ; 
that  is,  the  law  assumes  that  accidents  are  an  in- 
evitable part  of  the  very  workings  of  a  produc- 
ing business,  and  should  for  that  reason  be 
recognized  as  such  and  paid  for  by  being  made 
part  of  the  cost  of  the  goods  themselves,  just 
as  rent,  insurance,  machinery,  etc.,  is  added  to 
that  cost.  With  us,  however,  that  principle,  one 
that  President  Roosevelt  has  advocated  recently 
in  two  messages,  is  not  recognized,  and  all  but 
an  insignificant  part  of  the  burden  of  industrial 
accidents  falls  solely  so  far  as  the  law  is  con- 
cerned upon  the  injured  employee.  Notwith- 
standing this,  many  American  employers,  par- 
ticularly in  large  establishments,  are  voluntarily 
assuming  for  themselves  responsibility  for  these 
accidents,  paying  wages  during  disability,  pro- 
viding medical  attendance,  and  making  a  gen- 
eral compensation  for  them.  The  tendency  to 
do  this,  I  think,  increases.  Most  of  the  great 
railroad  companies  contribute  to  railway  relief 
associations  created  for  the  purpose  of  caring 
282 


THE   ETHICS   OF   PRODUCTION 

for  injured  employees  hurt  in  the  service.  The 
United  States  Steel  Company  has  a  very  elabor- 
ate system  of  this  kind,  maintaining  a  large  hos- 
pital and  dispensing  thousands  of  dollars  on  the 
accidents  which  are  inevitable  in  its  huge  plants. 
I  know  of  a  number  of  large  companies  in  New 
York  who  do  the  same  thing.  An  employer  who 
does  these  things  has  of  course  to  compete  in  the 
market  with  the  employer  who  does  not.  The 
good  employer  has  to  meet  the  bad  employer's 
price  list ;  he  has  to  carry  the  handicap  which  the 
expense  of  the  accidents  puts  upon  him  and  still 
hold  his  own  in  competition  with  the  others. 
The  fact  that  an  increasing  number  of  employers 
are  thus  making  the  laws  for  themselves  which 
the  State  has  not  imposed  upon  their  competi- 
tors is  at  once  encouraging  and  inspiring. 

Those  who  complain  that  the  ethical  standard 
of  treatment  of  employees  by  employers  is  be- 
low what  it  should  be  should  bear  in  mind  this 
handicap.  We  are  still  strongly  individualistic 
in  the  old  sense  of  the  term  in  our  notions  of 
law.  We  have  still  a  theory  of  liberty  which 
guarantees  to  the  worker  individual  rather  than 
industrial  freedom.  We  guarantee  the  adult 
against  interferences  with  the  number  of  hours 
283 


THE  OLD  LAW  AND  THE  NEW  ORDER 

he  can  work,  instead  of  limiting  those  hours 
where  fierce  competition  tends  to  make  them  too 
long.  We  guarantee  him  the  right  to  work,  ex- 
posed to  unnecessarily  dangerous  machinery, 
and  our  law  assumes,  because  he  works  there, 
meeting  those  dangers,  that  being  a  free  man 
he  has  accepted  or  assumed  the  risk  of  being 
maimed  or  killed,  it  being  part  of  his  liberty  to 
work  in  danger  rather  than  in  safety.1  It  guar- 
antees him  the  right  to  buy  his  supplies  at  the 
company  stores,  where  the  supplies  are  often  sold 
far  above  market  rates  at  enormous  profit  to  the 
company  maintaining  them.  It  is  a  part  of  his 
liberty  to  purchase  his  goods  there  rather  than 
to  be  protected  against  extortion  by  positive 
law.  We  guarantee  him  this  specious  liberty  be- 
cause we  still  assume,  as  a  basis  for  industrial 
life,  the  existence  of  a  theory  which  is  often  en- 

1  Recent  changes  have  made  this  statement,  in  so  far  as  it 
relates  to  most  of  the  great  industrial  states,  no  longer  true.  In 
many  states  in  which  this  cruel  rule  was  the  law  as  declared  by 
the  courts,  a  contrary  rule  has  been  established  by  legislation. 
The  Court  of  Appeals  in  New  York  in  a  recent  decision  (Fitz- 
water  <v.  Warren,  206  N.  Y.  355,  decided  in  October,  19 12) 
has  recanted  its  former  doctrine  and  has  laid  down  without  legis- 
lative compulsion  a  more  humane  and  enlightened  rule  in  harmony 
with  an  important  decision  (Narramore  <v.  C.  C.  &  St.  L.  Ry. 
Co.,  96  Fed.  298)  rendered  many  years  ago  by  President  Taft 
when  serving  on  the  Federal  Bench. 

284 


THE   ETHICS   OF   PRODUCTION 

tirely  contrary  to  the  plainest  facts  of  common 
knowledge  ;  that  is,  we  assume  the  existence  of 
a  condition  of  individual  equality  under  which 
no  constraints  through  his  necessities  can  be  too 
burdensome  to  be  borne  by  the  worker. 

The  continuance  of  this  theory,  our  failure  to 
recognize  its  necessary  limitations,  amounts  to 
an  insistence  upon  industrial  warfare  rather  than 
industrial  peace.  As  I  have  said  a  few  moments 
ago,  there  are  those  who  believe  that  the  work- 
er's social  advancement  should  be  forwarded  by 
the  labor-union,  not  by  the  law.  If  the  em- 
ployee is  to  have  only  those  industrial  rights 
which  he  can  get  by  combination  with  his  fel- 
lows, if  his  union  must  give  the  main  protec- 
tion for  his  life  and  happiness,  there  is  bound 
to  occur  a  certain  diversion  of  loyalty  from  the 
State  to  the  labor-union.  We  cannot  afford  in 
a  democratic  country  like  ours,  where  every- 
body has  a  vote,  to  alienate  the  worker  from  the 
State  by  over-strengthening  his  loyalty  to  his 
union.  I  am  reminded  of  this  by  an  incident 
which  occurred  on  the  East  Side  in  New  York 
a  few  years  ago,  when  a  young  reformer  sought 
to  lecture  an  East  Side  Hebrew  baker  for  hav- 
ing sold  his  vote  at  an  election.  He  reminded 
285 


THE  OLD  LAW  AND  THE  NEW  ORDER 

him  of  the  duty  he  owed  as  a  citizen  to  the 
State  to  cast  an  unbought  ballot.  The  man  re- 
plied, "  I  got  $3.50  for  my  vote.  You  show  me 
where  the  State  has  ever  been  worth  $3.50  to  me 
and  I  will  never  sell  my  vote  again  ;  but  you 
can't  do  it."  This  incident  occurred  shortly 
after  the  United  States  Supreme  Court  had  de- 
cided that  a  law  limiting  the  hours  of  labor  in 
bakeshops,  many  of  them  unspeakable  under- 
ground ovens,  was  unconstitutional  as  depriv- 
ing those  workers  of  "liberty"  without  "due 
process  of  law."  It  might,  therefore,  be  assumed 
that  the  baker  had  considered  the  value  of  that 
liberty  when  he  sold  his  vote,  and  had  con- 
cluded that  it  was  of  comparatively  less  value 
than  the  bribe  he  had  accepted. 

Considering  now  the  relation  of  the  producer 
to  his  retailer  and  the  public,  I  realize  the  im- 
possibility of  making  any  safe  generalizations. 
There  are  those  who  consider  that  trickery  in 
business  is  on  the  increase;  that  fraud  and  adul- 
teration in  goods  have  become  a  general  practice ; 
that  the  habit  increases  of  paying  special  com- 
missions to  buyers  and  purchasing  agents,  which 
are  nothing  less  than  bribes  for  the  placing  of 
goods  with  retailers.  The  basis  for  this  opinion 
286 


THE   ETHICS   OF   PRODUCTION 

must  be  found  largely  in  the  fact  that  we  are  en- 
acting laws  to  cut  out  the  trickster,  to  punish 
the  man  who  steals  his  rival's  trademarks  and 
who  is  guilty  of  adulteration  and  substitution. 
Our  National  Pure  Food  Law  has  done  much 
to  bring  out  information  regarding  these  dishon- 
est devices  of  unscrupulous  manufacturers  and 
dealers  in  foodstuffs.  But  pure  food  laws  are  not 
new.  It  is  the  enforcement  of  them  which  is  new. 
We  are  putting  the  patent  medicine  where  it  be- 
longs. Some  of  the  things  we  have  learned  about 
these  medicines  make  rather  lurid  reading,  but 
bear  in  mind  this,  that  the  facts  we  have  found 
out  about  them  have  come  out  in  a  campaign  to 
stop  them.  The  value  of  the  beef  trust  investi- 
gation did  not  stop  with  the  meat  industry.  The 
number  of  big  business  establishments  whose 
owners  cleaned  them  up  carefully,  for  fear  that 
some  similar  expose  might  come  to  them,  is  much 
greater  than  the  public  realizes. 

We  are  just  beginning  to  take  measures  to 
stop  one  disheartening  form  of  business  compe- 
tition, that  is,  the  grafting  commission.  In  busi- 
ness I  sometimes  think  that  to  day  everybody 
in  business  wants  a  "commission  "  he  is  not  en- 
titled to  on  something.  In  the  fight  for  trade 
287 


THE  OLD  LAW  AND  THE  NEW  ORDER 

even  large  and  prosperous  houses  have  adopted 
methods  which  cannot  be  fairly  distinguished, 
except  for  the  lack  of  bloodshed  and  physical  risk, 
from  the  methods  of  the  burglar.  The  moral 
difference  is  inappreciable  between  the  burglar 
who  enters  a  man's  house  by  having  an  inside 
accomplice  who  opens  a  door  or  a  window  and 
the  producer  who  gets  into  the  same  man's 
business  establishment  downtown  by  bribing  his 
buyer  or  purchasing  agent  to  purchase  goods. 
Now  we  must  admit  that  in  recent  years  there 
has  been  a  decided  increase  in  the  number  of  so- 
called  commissions  of  the  illegitimate  kind  of- 
fered to  or  demanded  by  all  sorts  of  employees, 
purchasing  agents,  buyers,  and  the  like  in  busi- 
ness establishments.  It  is  a  great  evil.  It  is  not 
peculiar  to  producing  business.  It  permeates  the 
whole  of  our  commercial  and  financial  life.  Per- 
sonally I  am  inclined  to  trace  the  increase  in  busi- 
ness practices  of  this  kind  to  the  tremendous 
and  practically  unregulated  development  of  what 
may  be  described  as  the  fiduciary  principle  in 
our  modern  business  life.  The  corporation  as  we 
have  it  to-day  in  America  is  doing  the  greater 
part  of  our  business.  Men  are  employed  in  cor- 
porations practically  as  trustees  for  the  stock- 
288 


THE   ETHICS   OF   PRODUCTION 

holders.  An  impersonal  employer,  consisting 
sometimes  of  thousands  of  individuals  scattered 
broadcast  over  the  land,  is  substituted  for  the 
old  definite  personal  employer  near  at  hand  who 
watched  the  processes  of  the  business.  Our  cor- 
poration laws  have  thus  far  been  exceedingly 
loose.  Many  of  them  afford  extraordinary  and 
immoral  protection  to  promoters  and  organizers 
in  making  large  and  highly  questionable  profits 
at  the  expense  of  the  investors  who  subsequently 
put  the  actual  capital  into  the  company  by  buy- 
ing its  stocks  and  bonds.  The  extraordinary 
temptations  afforded  by  these  and  other  oppor- 
tunities given  to  men  in  control  of  corporations 
has  had  its  natural  result.  There  has  grown  up 
a  class  of  misnamed  financiers,  who,  taking  ad- 
vantage of  these  loose  laws,  have  made  fortunes 
through  essentially  dishonest  but  not  yet  crim- 
inal practices.  As  it  becomes  generally  known 
by  the  subordinate  in  these  corporations  that 
fortunes  are  being  made  in  this  way  by  their 
superiors,  a  strong  temptation  is  created  in  the 
rank  and  file  to  follow  their  example.  The  rail- 
road purchasing  agent,  for  example,  who  sees 
the  officers  and  directors  above  him  making  pro- 
fits through  stock  and  bond  deals,  through  con- 
289 


THE  OLD  LAW  AND  THE  NEW  ORDER 

struction  contracts  made  with  themselves  through 
dummies  and  the  like,  has  a  strong  temptation 
to  follow  the  example  of  his  superiors.  The  ef- 
fect of  these  examples  is  not  limited  to  railroad 
or  corporate  business,  but  is  reflected  through- 
out the  whole  range  of  commercial  life.  The  buyer 
must  have  a  commission  for  treachery  to  his  em- 
ployer; the  clerk  must  have  his  graft,  and  so  on 
up  and  down  the  line.  The  worst  of  it  is  that  this 
kind  of  business  has  gone  on  for  so  long  that  it 
has  become  a  sort  of  a  custom.  The  drastic  meth- 
ods which  are  being  employed  are  needed  to  root 
it  out.  Public  opinion  must  be  still  further 
aroused  against  this  prevalent  form  of  dishonor, 
this  growth  of  treachery.  We  are  all  of  us  respon- 
sible for  the  lack  of  an  active  public  conscience 
on  this  matter.  We  must  quicken  the  individual 
conscience.  We  must  make  commercial  bribery 
and  corporate  breach  of  trust  odious  through 
public  disapproval.  We  must  have  law  which  will 
help  us,  and  we  must  enforce  that  law.  In  New 
York  a  statute  was  passed  two  years  ago  on  this 
subject.  The  Supreme  Court,  speaking  of  it  in 
a  recent  decision,  says:  — 

The  corrupt  practices  of  secretly  offering  bribes  to 
servants,  agents, and  employees,  to  induce  them  to  place 
290 


THE   ETHICS   OF   PRODUCTION 

contracts  for  their  masters  or  employers,  has  spread  to 
such  an  alarming  extent  in  this  State  that  its  viciousness 
and  dishonest  and  demoralizing  tendencies  attracted 
the  attention  of  the  legislature  and  led  it  to  declare  it 
to  be  a  misdemeanor  to  give  or  receive  such  a  bribe. 

This  law  is  good  in  its  way  and  the  enforcement 
of  it  will  produce  good  results.  But,  after  all, 
what  we  really  need  is  law  adequate  to  reach 
not  the  small  fry,  but  the  great  offenders  whose 
success  and  example  cause  others  to  offend, 
college-endowing,  church-building  men  whose 
greatest  public  service  would  be  a  term  in  jail. 
We  college  men  stand  disgraced  by  what  men 
of  our  own  class  do  with  their  education.  We 
cannot  hope  to  make  law  which  shall  make  such 
peculation  impossible,  which  shall  surely  punish 
it  in  all  cases.  Social  ostracism  is  a  better  weapon. 
It  is  our  fault  that  we  do  not  use  it.  The  test 
of  the  value  of  university  training  for  the  life  of 
our  day  is  right  here  :  What  does  it  contribute 
towards  the  higher  ideal  of  success  ?  There  is 
no  curse  to  a  country  like  the  increase  of  intel- 
lect without  character.  The  vital  problem  in 
America  to-day  is  the  definition  of  success.  No 
man  who  reads  or  thinks  can  doubt  the  grow- 
ing strength  of  the  moral  forces  which  seek  to 
291 


THE  OLD  LAW  AND  THE  NEW  ORDER 

define  that  word,  so  that  it  shall  mean  only  some- 
thing to  which  an  honorable  man  can  with  good 
conscience  aspire. 

There  is  no  reason  for  losing  courage  or  get- 
ting cynical.  There  are  many  reasons  for  ex- 
pecting better  things.  As  we  get  older  as  a  peo- 
ple, business  tends  to  get  a  certain  stability  which 
it  could  not  have  in  our  restless  youth.  In  the 
new  community  the  man  who  keeps  a  grocery- 
to-day  may  start  a  bank  to-morrow.  He  is  look- 
ing for  the  main  chance.  He  is  not  sure  whether 
he  will  stay  in  the  place  or  in  the  business.  He 
looks  to  the  immediate  profit  and  takes  short 
views  of  the  business  itself.  He  is  looking  more 
for  quick  money  to  be  made  out  of  that  busi- 
ness than  for  the  good  name  of  the  business 
itself.  As  we  settle  down,  all  this  rather  tends 
to  change.  The  man  in  a  particular  business 
expects  to  stay  in  it  and  is  more  inclined  to  es- 
tablish permanent  relations  with  the  business 
itself.  The  thing  which  gets  more  important  as 
a  business  asset  as  we  grow  older  is  the  good 
name  of  the  house. 

There  are  still  thousands  of  producers,  to  be 
sure,  who  rely  overmuch  on  the  great  Ameri- 
can idea  of  advertising  more  than  on  the  qual- 
292 


THE   ETHICS   OF   PRODUCTION 

ity  of  their  goods.  We  know  more  about  how 
to  advertise  than  any  country  in  the  world.  It 
has  its  great  value,  though  we  undoubtedly 
overdo  it  and  overlook  its  necessary  limitations. 
Advertising  at  best  is  a  sort  of  industrial  fertil- 
izer, and  the  best  of  fertilizers  is  no  substitute 
for  soil.  A  name  may  become  widely  known  by 
advertising,  it  can  become  well  known  only  by 
the  goods  themselves  and  the  methods  by  which 
they  are  sold.  The  permanent  good-will  of  the 
house  which  Lord  Eldon  defined  as  the  pros- 
pect that  the  old  customer  will  return,  is  and 
must  be  based  on  the  character  of  the  house 
and  not  on  the  advertising. 

Last  summer  in  London,  a  friend  of  mine  on 
his  way  home  one  day  saw  an  old  Sheffield  tea- 
pot in  a  shop  window.  He  took  a  look  at  it, 
fancied  it,  and  told  the  proprietor  to  send  to 
his  house  for  another  teapot  which  he  had  but 
did  not  like,  and  make  such  allowance  on  it  as 
was  proper  and  send  up  the  new  teapot  with  a 
bill  for  the  difference.  Of  course  he  did  not 
know  what  allowance  would  be  made  on  the 
teapot  which  he  had,  and  I  asked  him  if  he  was 
not  taking  a  risk  in  doing  business  this  way. 
"  Well,"  he  said,  "  this  is  one  of  those  old  Lon - 
293 


THE  OLD  LAW  AND  THE  NEW  ORDER 

don  shops.  They  have  been  on  that  spot  for  a 
hundred  and  fifty  years,  and  they  have  a  repu- 
tation which  is  of  more  importance  to  them  than 
an  extra  profit  on  this  particular  transaction. 
They  expect  to  be  on  that  spot  for  a  hundred 
and  fifty  years  more  and  they  expect  to  see  me 
again." 

Now  I  think  we  can  find  this  same  spirit  and 
desire  for  the  name  of  the  house  growing  with 
us.  The  producer,  of  course,  has  to  be  in- 
fluenced by  the  spirit  of  the  retailer,  and  the 
largest  and  most  substantial  retail  houses  have, 
with  few  exceptions,  this  motto,  "Make  a  cus- 
tomer rather  than  a  sale."  I  am  told  that  in  the 
largest  retail  house  in  this  country,  the  second 
in  the  world,  the  surest  road  to  dismissal  is  the 
slightest  misrepresentation  of  goods. 

We  are  in  the  business  world  losing  that  dis- 
creditable admiration  for  "smartness" — that 
cheap  combination  of  shrewdness  and  guile 
which  in  years  past  we  so  highly  esteemed.  We 
are  losing  our  regard  for  it  because,  as  we  take 
longer  views  of  business,  as  we  consider  it  more 
as  a  permanent  occupation  rather  than  a  tempo- 
rary and  changing  condition,  the  cheap  shrewd- 
ness of  commercial  trickery  proves  itself  a  fail- 
294 


THE   ETHICS   OF    PRODUCTION 

ure.  Solider  qualities  are  to-day  needed  for 
substantial  business  success.  In  the  professions 
something  more  than  money  is  essential  to  pro- 
fessional eminence.  There  are  rich  shysters  and 
rich  quacks,  but  we  do  not  commonly  call  them 
successful.  We  withhold  the  word,  because  suc- 
cess in  the  profession  implies  observance  of  the 
set  standards  of  professional  conduct.  In  the 
same  way  standards  are  being  set  in  the  commer- 
cial world,  indirectly  perhaps  and  often  almost 
unconsciously  through  trade  guilds,  merchants' 
associations,  credit  associations,  and  the  more 
frequent  meeting  of  merchants  for  the  exchange 
of  views.  A  business  house  has  to-day  a  much 
more  definite  relation  to  the  trade  than  for- 
merly. Just  as  the  rich  quack  or  the  rich  shy- 
ster lacks  a  subtle  something  which  makes  suc- 
cess, something  which  robs  him  of  joy  in  his 
work,  so  the  merchant  or  the  producer  who 
merely  makes  money,  loses,  and  what  is  more 
feels  that  he  loses,  something  essential  when  his 
practices  have  got  him  a  bad  name  in  the  trade. 
How  much  oftener  I  hear  used  phrases  which 
mean  moral  standards  in  the  business  world, 
phrases  cast  off  carelessly  in  conversation  on 
business  topics — so  and  so,  solid  old  house, 
295 


THE  OLD  LAW  AND  THE  NEW  ORDER 

high-class  concern ;  so  and  so,  big  house  but  a 
bad  name  in  the  trade.  These  simple  phrases 
as  merchants  use  them  mean  much,  for  they  in- 
dicate the  development  of  commercial  standards 
of  success. 

We  are  often  discouraged,  no  doubt.  We  see 
things  and  we  read  things  which  seen  too  closely 
make  us  lose  that  perspective  needed  for  just 
conclusions.  But  after  all,  as  our  vision  clears, 
as  we  regain  that  perspective,  we  can  see,  surely 
and  not  slowly  building  under  our  eyes,  on 
solider  foundations,  the  moral  framework  of 
American  business,  building  on  principles  which 
recognize  character  as  the  great  basis  of  credit 
and  an  approximation  to  the  Golden  Rule  as  an 
essential  part  of  the  name  of  the  house. 


THE   END 


&be  rutirrsiDi-  p res' 9 

CAMBRIDGE  .  MASSACHUSETTS 
U    .   S    .   A 


Date  Due 

MAY  2  6  1< 

64 

OCR    JUI 

I     5  1984 

1984 

IGR  DEC 

5    1984 

<f) 

UC  SOUTHERN  REGIONAL  LIBRARY 'FACILITY 


AA    001  144  287    8 


